In October 2020 the Western Cape High Court had declared the Intestate Succession Act as unconstitutional and invalid, unfair discrimination and a violation of the rights and dignity of women. As a result, this was considered by the SA Constitutional Court in 2021. (intestate = to die without a Will)
In a landmark judgment by the Constitutional Court, which was handed down on 31 December 2021, the Constitutional Court developed South African family law and law of intestate succession further, to the extent that surviving partners in life partnerships, who are not formally married, will enjoy the same rights regarding claims for maintenance and intestate succession as a surviving spouse of a deceased. (https://vzlr.co.za/2022/06/07/further–recognition-for-life-partnership/)
This decision has meant a change to the Intestate Succession Act to include life partners as “spouses”. This gives life partners the same status as spouses should one of the partners die intestate. This means that the surviving partner can claim against the deceased’s estate as if they are a spouse. The changes include regulations on how the assets should be divided.
Following these decisions, Refiloe Maunatlala, a law lecturer at the University of Pretoria, felt that this was a bit unfair. As she said, “How does one clearly differentiate between love relationships and permanent life partners?” Due to this uncertainty, until now permanency was dealt with on a case-by-case basis. “This (Concourt decision) will create more uncertainty. This uncertainty will lead to some deceased person’s estate going to their cohabiting partner (not life-long partner) who might abuse the uncertainty.” She made these comments at the Fiduciary Institute of Southern Africa Conference in October 2023.
Another speaker at the conference, Preesha Seetal, Deputy Pretoria Master at the Department of Justice and Constitutional Development, said that her department was revising a form to verify permanent life partnerships.
Some of the requirements will include:
- An affidavit giving a detailed account of the claim of life partnership.
2. The surviving partner would have to confirm that they had an unlimited mutual agreement of support – proof of this could include a pension or pension benefits and/or insurance policies where both parties were each other’s beneficiaries and/or any form of medical aid; as much proof as possible.
3. They cohabited at a certain address.
4. The length of the relationship.
“The more evidence you have the better, I suppose, for you,” she said.
(Information taken from: Granting life partners spousal rights ‘unfair’. Independent on Saturday 21 October 2023 page 15)