Legal victory for heterosexual life partners

In the recent decision of Bwanya v The Master of the High Court and others, the court discussed the legal status of heterosexual life partners, specifically the rights of a surviving life partner to the proceeds of a deceased partner’s estate.

The process to approval for extending a Sectional Title Unit

The context
The parties in this case had been partners in a permanent heterosexual life partnership for close to two years, with the deceased having asked the applicant for her hand in marriage before his death. Their intention to marry was supported by the deceased’s diary entries, the fact that he provided for the applicant financially and had made plans to buy a car for her, and that the two had planned to start a cleaning business together. Furthermore, the parties lived together, supported one another and their relationship had the characteristics of a marriage.

The precedent
The legal position prior to this judgment was that heterosexual life partners were excluded from inheriting or claiming in terms of the Intestate Succession Act as well as the Maintenance of Surviving Spouses Act as evidenced in the Volks v Robinson case. This was based on the notion that heterosexual couples had the choice to formalise their union.

The argument
The applicant submitted to the court that there was a contractual duty of support between herself and the deceased and argued that she was being discriminated against based on section 9(3) of the Constitution on the basis of marital status. The section provides that, “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

The decision
The court decided that there was no reason why heterosexual life partnerships should be excluded from the Intestate Succession Act or the Maintenance of Surviving Spouses Act. It held that the applicant and the deceased were in a permanent heterosexual life partnership and questioned the constitutionality of section 1 of the Intestate Succession Act in as far as it excludes partners in permanent heterosexual life partnerships from claiming maintenance in terms of this Act.

 Due to the court’s findings, the parties agreed that the applicant would receive benefits bestowed upon spouses in terms of a settlement agreement reached by all parties involved, until the Legislature makes amendments to the above-mentioned Acts.

The outcome of this case is significant for women who have built a life with their partners, and find themselves in a vulnerable position when their partners pass away, as it means they are now able to lay claim to the deceased partner’s estate.

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

Minors and immovable property
Legislative Guidelines

Non-resident sellers: Make sure you comply with SARS requirements[post_view before=""]

Non-resident property sellers should be aware of the requirements of section 35A of the Income Tax Act 58 of 1962. The section stipulates that an amount equal to 5% (individuals), 10% (companies) or 15% (trusts) of the proceeds of a sale of immovable property must be withheld and paid over to SARS within 14 days after “the date on which the amount was so withheld” – this is typically the date of registration of transfer. An exception is if the parties agree that the purchase price be paid before registration, in which case the 14 days will be calculated from such payment date.

Read More
Minors and immovable property
Legislative Guidelines

Comment on the Expropriation Bill, 2020[post_view before=""]

This article seeks to highlight some aspects of expropriation of land by looking at the current section 25 of the Constitution and the Expropriation Bill 2020, issued by the Department of Public Works and Infrastructure.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

Land claims and their impact on the registration of mortgage bonds[post_view before=""]

When it comes to commercial lending transactions, the lender – usually a commercial or corporate division of a bank – may require confirmation that there are no land claims in process in respect of the property or properties that will form part of the security to be registered in the lending structure.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

Private companies and the restriction on transferability of shares[post_view before=""]

A requirement of the previous Companies Act of 1973 was that a private company must restrict the ‘right to transfer’ its shares, by way of the company’s articles of association, however, more recent legislation (Companies Act 71 of 2008) revised this. Now, a Memorandum of Incorporation (MOI) of a private company must restrict the transferability of any company’s ‘securities’ which includes both instruments such as shares as well as debt instruments such as debentures.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

What does the new Airbnb law mean for Cape Town property owners?[post_view before=""]

Cape Town has approved new legislation that will have a significant impact on how short-term and holiday rentals will operate in the city, enabling property owners to financially benefit from the tourism industry.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Legal victory for heterosexual life partners

In the recent decision of Bwanya v The Master of the High Court and others, the court discussed the legal status of heterosexual life partners, specifically the rights of a surviving life partner to the proceeds of a deceased partner’s estate.

The process to approval for extending a Sectional Title Unit

The context
The parties in this case had been partners in a permanent heterosexual life partnership for close to two years, with the deceased having asked the applicant for her hand in marriage before his death. Their intention to marry was supported by the deceased’s diary entries, the fact that he provided for the applicant financially and had made plans to buy a car for her, and that the two had planned to start a cleaning business together. Furthermore, the parties lived together, supported one another and their relationship had the characteristics of a marriage.

The precedent
The legal position prior to this judgment was that heterosexual life partners were excluded from inheriting or claiming in terms of the Intestate Succession Act as well as the Maintenance of Surviving Spouses Act as evidenced in the Volks v Robinson case. This was based on the notion that heterosexual couples had the choice to formalise their union.

The argument
The applicant submitted to the court that there was a contractual duty of support between herself and the deceased and argued that she was being discriminated against based on section 9(3) of the Constitution on the basis of marital status. The section provides that, “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

The decision
The court decided that there was no reason why heterosexual life partnerships should be excluded from the Intestate Succession Act or the Maintenance of Surviving Spouses Act. It held that the applicant and the deceased were in a permanent heterosexual life partnership and questioned the constitutionality of section 1 of the Intestate Succession Act in as far as it excludes partners in permanent heterosexual life partnerships from claiming maintenance in terms of this Act.

 Due to the court’s findings, the parties agreed that the applicant would receive benefits bestowed upon spouses in terms of a settlement agreement reached by all parties involved, until the Legislature makes amendments to the above-mentioned Acts.

The outcome of this case is significant for women who have built a life with their partners, and find themselves in a vulnerable position when their partners pass away, as it means they are now able to lay claim to the deceased partner’s estate.

Follow Snymans on Facebook for more legal information, tips and news about property.