Background on the Battle to Define ‘Spouse’

Before the Civil Union Act of 2006 came into effect, same-sex couples could not legally marry, so were excluded from the definition of ‘spouse’, and thus disqualified as intestate heirs. In the Gory vs Kolver case of 2007, this was deemed unconstitutional, and the definition of ‘spouse’ was extended to include a ‘partner in a permanent same-sex life partnership’ with reciprocal duties of support. In a nutshell? An unmarried same-sex partner now had an automatic claim as an intestate heir.

Same-sex couples can now marry, but the definition of ‘spouse’ was never amended to include unmarried opposite-sex life partners. Until the Bwanya case…

What It Means for Unmarried Couples in SA

Thomson says, “This is a massive change; it throws everything on its head and stands to alter the law of marriage completely. It may change two very important acts we’ve had in our law for many, many years. We must look at fairness; what is equitable? Should people living together be tasked with the same obligations as those who have chosen to marry? Should they be treated as if they’re in a partnership arrangement?

“These changes could be quite alarming for people who are just living together. Suddenly, things get a lot more serious. Many may start asking what they need to do and whether they want the other person to inherit.”

Thomson says that in a country where 70% to 80% of people do not have a will, the prospective changes have big ramifications. They could also cause confusion. Parliament has 18 months to amend the acts, but it could take even longer. This could cause serious delays in winding up estates. Some of the prospective ‘complications’ include:

1. When there are heirs involved: The Bwanya case was straightforward as there were no heirs involved. Heirs bring a whole different dimension. The amendments may mean a life partner’s intestate and maintenance claims will rank equally to a child heir’s claim.
   
   Thomson says, “Imagine we are trying to wind up a client’s mother’s estate, and her companion – a man her family thought she was just seeing for a few months, but he had actually moved in – decides he has a claim for maintenance or even half the estate. The heirs need the inheritance, but now, we must stop the process and wait until the law changes, which could take years. We could continue to wind up the estate, but based on the Bwanya judgement, the live-in partner could obtain an interdict and an adverse cost order, which means the family (or the estate) would be required to pay his legal fees. Some families may try to settle out of court, but most people won’t have the money to do that.”
   
   
2. Proving a long-term love relationship: Thomson says, “It’s going to be very hard to prove a long-term relationship. There’s lots of opportunity for fraud. The burden of proof will be on the surviving partner. Again, the Bwanya case was straightforward – there was evidence of intent to marry and reciprocal duties of support from bank statements, etc. There will need to be more clarity on what constitutes proof with guidelines from various High Court cases.”
   
   
3. Polygamous relationships potentially mean many claims: It’s all very well if you have one life partner claiming from the estate. But what if you have two? Or more? Which claim takes precedence, or are they treated equally? South Africa allows polygamous relationships, so this needs to be addressed. Can you afford to pay maintenance to multiple partners?