We see it every day – couples, whether of the same sex or not, living together before/instead of getting married. This is commonly referred to as a “domestic partnership”.
If this is what you choose, just make sure you know exactly what rights/protection the law will and will not afford you at the death of your partner.
The common misconception
Before going any further, let’s just clarify exactly what we are discussing here: when referring to a domestic partnership, I am referring to a couple (hetero- or homosexual) who are not spouses to a religious marriage and who have not formalised their relationship in terms of any act (i.e. Marriage Act, Civil Union Act or Recognition of Customary Marriages Act). In short – those couples who choose not to marry.
Many people think that in our law there is some kind of time period after which you will be legally treated as a “spouse”. That is incorrect. There is no such thing as a “common law marriage” in South African law. No matter how long you’ve lived together, your “relationship” will never (legally) convert into any kind of marriage.
Although our courts have (in very specific instances) recognised that certain reciprocal duties flow from domestic partnerships – this is not a given. Couples such as these therefore only have the ordinary rules and remedies of the law (such as the law of contract, etc.) at their disposal.
So what happens at the death of your partner?
Let’s assume that your partner died and did not leave a will, or alternatively didn’t make any provisions for you in his/her will (for whatever reason). This can be quite a conundrum if you were financially dependent on one another – you are now left with all the household expenses (as an example), all on your own.
If you were married, you would automatically be entitled to inherit intestate in terms of the Intestate Succession Act No. 81 of 1987 (if there was no valid will). Alternatively, you could (circumstances permitting) qualify for a claim in terms of the Maintenance of Surviving Spouses Act No. 27 of 1990.
The problem is that a “spouse” is not defined in legislation regarding the law of succession or maintenance, which means that the surviving partner does not automatically have any of these rights at the death of the other partner.
The right of the survivor to inherit from a partner when the partner dies intestate was established in the 2006 Constitutional Court case Gory v Kolver  4 BPLR 255 (CC). The Applicant, Mr Mark Gory, and the late Henry Harrison Brooks (“the deceased”) were, at the time of the latter’s death, partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support.
When Mr Brooks died intestate on 30 April 2005, his parents claimed to be the intestate heirs in terms of section 1(1)(d)(i) of the Act, which provides that when a person dies intestate and is not survived by a spouse or descendant, but is survived “by both his parents, his parents shall inherit the intestate estate in equal shares”. They accordingly argued that they were entitled to his estate. Mr Gory, however, argued that he was the deceased’s sole intestate heir. In an application to the High Court, the Applicant challenged the constitutionality of section 1(1) in that it failed to include same-sex partners in its ambit. The High Court found in his favour, whereafter he approached the Constitutional Court for an order confirming the High Court’s finding regarding the unconstitutionality of section 1(1).
The Constitutional Court held that the High Court correctly found section 1(1) of the Act to be unconstitutional and invalid to the extent that it confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners. The court accordingly ordered that words be “read in” so that the word “spouse” is followed by the words “or partner in a permanent same-gender life partnership in which the partners have undertaken reciprocal duties of support”.
Please remember: at the time of this judgement it was not legally possible for same sex couples to marry. The Civil Union Act No. 17 of 2006 was enacted after this judgment and came into operation on 30 November 2006. This act made it possible for same-sex and opposite-sex couples to enter into either a marriage or a civil partnership, both of which enjoy the same legal recognition of marriage under the Marriage Act 25 of 1961.
Therefore, a partner in a same-sex relationship who died before the enactment of the Civil Union Act will be regarded as a “spouse” for the purposes of the Intestate Succession Act based on the above judgement. HOWEVER for all partners dying after the commencement of the Civil Union Act, he or she will only be regarded as a “spouse” if he or she had entered into a marriage or civil partnership under the Civil Union Act.
Maintenance of Surviving Spouses Act, 27 of 1990
The same “reading in” as discussed above unfortunately does not apply in respect of a surviving partner who wishes to claim against the estate of the deceased for maintenance under the Maintenance of Surviving Spouses Act.
The Maintenance of Surviving Spouses Act, 27 of 1990 (“the Act”) applies to all marriages which were entered into after 1 July 1990. The Act originates from the recommendations of the Commission’s report: “Review of the Law of Succession: The introduction of a legitimate portion or the granting of a right to maintenance to the surviving spouse” (Project 22), submitted in August 1987 in which the Commission recommended that a claim for maintenance be given by operation of the law.
The preamble sets out the purpose of the Act, being “to provide the surviving spouse in certain circumstances with a claim for maintenance against the estate of the deceased spouse;..”. Section 2(1) of the Act provides for a claim for maintenance against the estate of the deceased spouse
“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings”
A survivor is defined in section 1 of the Act as “the surviving spouse in a marriage dissolved by death and includes a spouse of a customary marriage which was dissolved by a civil marriage contracted by her husband in the customary marriage to another woman on or after 1 January 1929”. The Act does not define spouse or marriage.
Section 3 of the Act sets out the factors to take into account when determining a surviving spouse’s reasonable maintenance needs, namely:
a) The amount in the estate of the deceased spouse available for distribution to heirs and legatees;
b) the existing and expected means, earning capacity, financial needs and obligations of the survivor and the subsistence of the marriage; and
c) the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouse.
The purpose of section 2 of the Act is clear – it is intended to provide for the reasonable maintenance needs of parties to a marriage that is dissolved by the death of one of them. The aim of this section is thus to extend the maintenance obligations that exists during the marriage beyond the death of one of the parties. In other words, the obligation to maintain that exists during marriage is passed to the estate of the deceased spouse.
Volks v Robinson NO 2005 5 BCLR 446 (CC)
Mrs Robinson was a partner in a permanent life partnership with Mr Shandling from 1985 until his death in 2001. Robinson and Shandling were not married – this was their choice. Following the death of Shandling, Robinson submitted a claim for maintenance against the deceased estate. The executor of the estate (Volks) rejected her claim because she was not a “survivor” as contemplated by the Act.
Robinson approached the High Court (i.e. the Court a quo) for an order declaring that she was entitled to lodge a claim for maintenance in the estate, alternatively declaring that the Act was unconstitutional and invalid and that this unconstitutionality should be cured by a directive that section 1 thereof be read as if certain phrases and definitions were included in it. In particular, she argued that the relevant sections of the Act needed to be read as though:
“survivor” included “the surviving partner of the life partnership”;
that “spouse” included a person in a permanent life partnership;
that “marriage” included a permanent life partnership; and
that the omission of the necessary words in the definition of these particular words should be declared unconstitutional and invalid.
Her claim was upheld, the Court a quo finding that her relationship with Shandling had been a “monogamous permanent partnership” substantially similar to a marriage. The executor (Volks) appealed to the Constitutional Court arguing that reading-in required by the order of the Court a quo was inappropriate because the entire structure of the Act was based on the concept of marriage (i.e. it was intended to protect surviving spouses of marriages).
The majority of the Constitutional Court upheld the appeal. The court found that the purpose of the Act, viewed in the light of its history, was to extend an invariable consequence of marriage beyond the death of one of the spouses. Parties to a marriage were legally obliged to maintain each other during the subsistence of the marriage. The Act had been intended to deal with the perceived unfairness arising from the fact that the reciprocal maintenance obligations of spouses ceased upon death. The distinction drawn in this regard between married and unmarried persons could not be said to be unfair when considered in the larger context of the rights and obligations uniquely arising from marriage. The court held as follows:
“Whilst there was a reciprocal duty of support between married persons, the law imposed no such duty upon unmarried persons. To extend the provisions of the Act to the estate of a deceased person who was not obliged during his lifetime to maintain his partner would amount to imposing a duty after death where none had existed during his lifetime. Thus the differentiation complained of did not amount to unfair discrimination. Neither did it violate the dignity of surviving partners of life partnerships. Accordingly the appeal had to be upheld, and the declaration of invalidity made by the Court a quo could not be confirmed”.
In the separate judgment of Ngcobo J the judge held that the Constitution protected the right to marry and the institution of marriage. Considering that the protection of the institution of marriage, the law could afford protection to married persons that it did not accord to unmarried persons. This Act was primarily directed at ensuring that the survivors of marriages who were in need of maintenance and who were unable to support themselves did get maintenance. Furthermore, the law placed no legal barrier that prevented heterosexual partners in permanent life partnerships from getting married – all that the law did was to put in place a legal regime that regulated the rights and obligations of those heterosexual couples who had chosen marriage to govern their intimate relationship. Their entitlement to protection under the Act was one that depended upon their decision whether or not to marry. The law expected those heterosexual couples who desired the consequences ascribed to this type of relationship to signify their acceptance of those consequences by entering into a marriage relationship. Those who do not wish such consequences to flow from their relationship remained free to enter into some other form of relationship and to decide what consequences should flow from that relationship. In addition, persons involved in a relationship might choose not to marry for an array of reasons, including the fact that they did not wish the legal consequences of marriage to follow from their relationship. In such a situation, to impose the legal consequences of a marriage would be to undermine the right freely to marry and the nature of the agreement inherent in a marriage. It followed that the disputed provisions did not discriminate unfairly against heterosexual couples involved in a permanent life partnership and were thus not unconstitutional.
The Volks judgment clearly rejected the constitutional argument that the surviving partner in a non-marital heterosexual relationship should be entitled to the same benefits as a “spouse” under the Maintenance of Surviving Spouses Act 1990. The Volks judgment differs from Gory v Kolver in that, in the instance of a heterosexual life partnership, the partners do, and have always had, the option to conclude a legal marriage – but they choose not to. It therefore cannot be argued that it is discriminatory to distinguish between married spouses and partners in a heterosexual life partnership. Partners in a same-sex relationship could not conclude a marriage before 30 November 2006. In the latter case the exclusion from the Intestate Succession Act and Maintenance of Surviving Spouses Act was thus (before the enactment of the Civil Union Act) discriminatory.
As a last comment: even if we were to play devil’s advocate and say a court might be prepared to accept a domestic partnership as amounting to a “marriage” for the purposes of the Maintenance of Surviving Spouses Act, it still doesn’t guarantee that the surviving partner would be able to successfully claim against the estate, considering that the surviving partner:
might still be married to someone else (which is why he/she never married the deceased) – he/she could therefore still have a claim (in terms of a pending divorce) against the husband/wife based on their marital regime as well as a possible maintenance claim (circumstances permitting);
might inherit from the deceased in terms of the deceased’s will; or
could have a possible claim against the deceased’s pension benefits in terms of section 37C (provided he/she qualifies as a dependent for the purposes of section 37C of the Pension Funds Act No. 24 of 1956)
which could mean that all reasonable maintenance needs are already satisfied.
Remember that section 2(1) (as quoted above) makes a claim by a survivor subject to him/her not being able to provide for their own reasonable maintenance needs from their “own means and earnings‟. Section 1 defines “own means‟ as including “any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property or the law of succession or otherwise at the death of the deceased spouse‟.
In the Volks judgment the court recognised that unmarried couples who live together face many obstacles due to their relationships not being recognised and urged Parliament to correct this reality through legislation and policy reform. The Domestic Partnership Bill was promulgated in 2008, but it is uncertain if and when it will be enacted into law. The Bill deals with two types of relationships, namely: “Registered domestic partnerships” (a relationship between two adults that has been registered as a domestic partnership under the Bill – partners who register their relationship will be given some of the benefits married couples have) and “Unregistered domestic partnerships” (a relationship between two adults who live as a couple and who are not related by family).
However, until such time as the said Bill is enacted, it is best that couples staying together in an unregulated relationship draw up a cohabitation agreement that covers at least the distribution of assets upon termination of the relationship, maintenance obligations towards each other and the right to reside in the family home after termination of the relationship (to name a few).