Cohabitation: Current developments

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GARDEN ROUTE NEWS - The legal recognition given to cohabitation relationships has been widely developed in the case of Jane Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111; 2020 (12) BCLR 1446 (WCC); 2021 (1) SA 138 (WCC) (28 September 2020).

JANE BWANYA, the applicant in this case, was living together in a committed relationship with the deceased who died 2 months before they were to start with labola negotiations.

The applicant challenged the constitutionality of both the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 in this case. This case expanded the definition of 'spouse' in the Intestate Succession Act and dealt with the distribution of assets in an intestate estate.

The applicant challenged the constitutionality of section 1(1) of the Intestate Succession Act on the basis that it discriminated against her and other women in similar situations on the grounds of gender, sexual orientation and marital status. She also contented that it violated her constitutional rights to dignity and equality.

In terms of Section 1 of the Maintenance of Surviving Spouses Act the applicant argued that the Constitution should extend its protection to survivors of other types of relationships for example that of permanent heterosexual life partnerships, where the partners have undertaken reciprocal duties of support.

In the majority judgement of this case it was decided that the definition of the term “survivor” is unconstitutional and that it should include the following words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”.

“Spouse” and “marriage” was also declared to include a person in a permanent life partnership.

The majority judgement furthermore confirmed the decision that Section 1(1) of the Intestate Succession Act was constitutionally invalid and Parliament was given 18 months to rectify this constitutional defect.

The results of the above-mentioned case will pave the way for different forms of committed relationships, whether formalised or not, to be protected by the law and will allow the surviving partners to be able to claim maintenance from the estate.