Ashraf Hendricks, GroundUp
- A section of a law which prevents opposite sex life partners from inheriting their partner’s estate was declared unconstitutional.
- The High Court ruled that the Intestate Succession Act allows for same-sex partners who are not married to inherit, but not opposite sex partners.
- The judge said this had been a problem for many years, and women in particular were often stripped of all property rights when their life partners died.
They met when he offered her a lift while she was waiting for a taxi in Camps Bay, Cape Town, and by that evening they were on their first date.
Within months the couple was living together, shuttling between a Camps Bay house and a Sea Point flat.
In a landmark ruling on the inheritance rights of surviving spouses in opposite sex relationships, the High Court accepted that they indeed were a couple, with friends talking of their affection for each other.
He even kept a diary, jotting down notes about his plan to buy her a personalised number plate for the cleaning business they were going to run together. In one diary entry, he wrote they were hoping to have a baby together.
She kept her accommodation at her employer, where she was a domestic worker, so that she could stay over to help after Shabbat, or babysit the children if necessary, but they clearly lived together as a couple.
He called her his “princess” and even put together a welcome basket with a note addressed to his “brother-in-law” when he came to South Africa from Zimbabwe to visit.
She described their relationship as “traditional”, where he took care of the money side of running their home, and she took care of the cleaning and cooking for them.
They were in the process of planning a trip to Zimbabwe to pay lobola for their marriage when he died suddenly at the age of 57, without a will.
In all the permutations in the Intestate Succession Act on who could inherit if there was no will, her claim was rejected, even though they lived together as a couple. Intestate means dying without a will.
An application to court was launched in which the Master of the High Court, as executor of his estate, was the first respondent. At the eleventh hour, many of the other parties involved in the matter reached a settlement with her, but the case went ahead anyway, given the ramifications of the outcome.
The judgment noted that South Africa’s laws had evolved significantly to prevent discrimination against same-sex couples, to the extent of allowing a surviving same-sex spouse to inherit if there was no will.
However, it had not kept up with opposite sex long-term relationships and partners in these relationships did not have the same protection.
The court was asked to declare Section 1.1 of the Intestate Succession Act (ISA) invalid and unconstitutional as it stands because it discriminates against opposite sex life partners.
Acting Judge Penelope Magona agreed in a lengthy judgment that traversed South Africa’s progress regarding same-sex relationships, compared with the anomaly in intestate law regarding opposite sex relationships.
She said the case was important because so many couples live together without marrying and if a spouse dies, it is invariably the woman who is stripped of everything if there is no will.
Discriminatory and unconstitutional
She said this was particularly important in long-term relationships where a man was happy with the status quo and not interested in marriage.
She ruled that the failure to include the spouses of opposite sex couples for consideration in inheritance where there was no will, was discriminatory and unconstitutional.
She found it unfair and an infringement of the right to dignity and equality of the surviving opposite sex spouse that they could not inherit.
The Women’s Legal Resource Centre (WLRC), which had been a party to the matter, welcomed the judgment.
In a statement, the WLRC explained the court held that where the ISA refers to a spouse, these words must be added: “or a partner in a permanent opposite life partnership in which the partners had undertaken reciprocal duties of support”.
The court had been asked to also insert words to the effect that it would apply to a couple who intended to marry, but the judge declined, saying that doing so would be unfair to people who lived together in a life relationship of reciprocal support, but had no commitment to marry.
The matter will have to be confirmed by the Constitutional Court, and a settlement was also reached between the woman and other interested parties.
“Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death. The decision is therefore a welcome development in advancing the rights of women to equality and dignity specifically in relationships,” the WLRC said.
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