Historically the institution of marriage has been considered as the pinnacle of a romantic relationship. The nuclear family is held up as the norm and is attributed value and rights in society, as well as in our legal framework. South Africa’s legislative framework and family law, in particular, was and remains deeply influenced by colonialism and apartheid ideology. It, therefore, should surprise no one that we are continuing to deal with the legacy of these oppressive ideologies in our everyday lives.
Marriage was the only relationship in which each partner (of course, a man and a woman) caring for the other in different and varying ways created commitment and duty in law. The law reflected this, hence when the Intestate Succession Act was enacted in 1987, it provided for only surviving spouses to inherit from the deceased’s estate if their spouse had passed away without a will. The Intestate Succession Act seeks to provide for inheritance in cases in which a person passes away without leaving a valid will, or any will at all. The Act provides guidance on who the beneficiaries of the estate are and what they might be entitled to in law.
In 2006, in Gory vs Kolver NO and Others, the constitutional court recognised that because same-sex marriage was not recognised within our legislative framework at the time, many same-sex couples lived in partnerships akin to marriage, with parties undertaking reciprocal duties of support. As a result, the Intestate Succession Act was found to be unconstitutional and amended so that its definition of a surviving spouse included the surviving same-sex life partner of the deceased.
In the recently decided case of Jane Bwanya vs The master of the high court, the constitutional court acknowledged and affirmed the diverse families that exist in South African society, giving recognition to opposite-sex life partnerships that have long been denied such legal recognition. Subsequently, the court had to determine whether the commitment and duty that was created by virtue of each partner caring for the other in different and varying ways continued to be available for the surviving opposite-sex life partner when their partner passed away.
The Women’s Legal Centre Trust (WLCT) supported the challenge to the constitutionality of the Intestate Succession Act on the basis that it unfairly discriminates against women in opposite-sex life partnerships. We put forward, as friends of the court, that the non-recognition of opposite-sex life partnerships excludes the surviving partner from benefiting from their deceased partner’s estate.
The court applied the intersectional feminist lens that we provided and examined whether indeed Jane Bwanya and others similarly situated to her were being unfairly discriminated against on the basis of their gender, sex and marital status; the court recognised that the Act made provision for the surviving spouse and surviving same-sex partner to claim from the estates of their deceased partners, but failed to extend the same benefit to surviving partners in opposite-sex life partnerships. The question that naturally arises is what the basis for such an exclusion was and whether, in our constitutional democracy, there was a justifiable reason for it.
The court relied on the evidence provided by the WLCT, in which we highlighted the lived reality of many women in such partnerships and found that the exclusion of surviving opposite-sex life partners in the Intestate Succession Act disproportionately affected women, in particular vulnerable women.
The court referenced that although the underlying reasons varied for why women lived in domestic relationships, it found that these reasons gave rise to the need for their protection. South Africa is a deeply patriarchal society, in which “the women’s lack of bargaining power in the relationship; the dependence of women and children, if there be any, on the financial strength of the men in the relationships; and the mistaken belief by one or both partners in a permanent life partnership that they are in a legally binding ‘common law’ marriage” gave rise to the need and right of recognition and the protection afforded by the Intestate Succession Act. The court reiterated the high court judgment of acting judge Penny Magona in its discussion on how men are positioned in opposite-sex relationships in our society and how women consistently struggle, because they are never on an equal footing with men.
Through our work as the Women’s Legal Centre, we are all too aware that simply because our constitution requires equality both as a right not to be infringed and a value by which we all strive to live, traditionally most male partners dictate the nature and evolution of a romantic and intimate relationship. They are the ones in our society who benefit from “vat and sit” relationships and have little motivation to enter into what are considered to be more binding relationships with the status of a marriage. They tend to be more aware of the law and their rights because they have greater access to information.
The corresponding lack of information particularly affects women who live in rural, underserviced areas in our country. Although we are constantly evolving as a society, marriage is still held by most as an aspirational status and many women stay in life partnerships in the hope that one day their partners will go down on one knee and present them with the romantic picture of what is socially (and often, dangerously) accepted as the norm.
After flagging that we live in a “sexist, patriarchal and homophobic society; a society in which many individuals depend on others for their social and economic survival”, the court found that leaving an intimate relationship, even though such an option exists, can be extremely challenging for many women. The court spoke to the fact that we should address discrimination in our everyday life: “We must all discourage and fight conduct that engenders and seeks to normalise women’s almost slavish dependency on unloving or uncaring men who do not want to commit to explicitly binding rights and obligations and are virtually holding women, who depend on them for financial and material support, to ransom … Women must be free to enjoy and exercise their willpower or agency to say no to manipulation, abuse and being taken advantage of.”
Women are not a homogenous group and each individual should be able to make decisions and choices for themselves as individuals and for their families. Women’s positionality in opposite-sex relationships should, therefore, also be understood from the perspective that permanent life partnerships represent the financial, emotional, reproductive and other needs that we have as people. They meet each partner’s desire for love, romance and intimacy in the same manner as those who marry. The court found that it simply could not ignore the fact that domestic partnerships play an important role in our diverse family constructs, given that 3.2-million South Africans were cohabitating with their intimate partners in 2016.
In considering all these, factors the court concluded that there was no justifiably reason as to why surviving opposite-sex partners were not entitled to inherit from their deceased partner’s estate in the same manner as any other spouse or partner in a same-sex life partnership. The exclusion in the Intestate Succession Act, therefore, amounts to unfair discrimination and the department of justice, which oversees the legislation dealing with deceased estates have been ordered to amend it.
The court has ordered that a reading into the language of the current text of the Intestate Succession Act would suffice and so wherever the word “spouse” appears in the Act, the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” should be read. The order of invalidity was suspended for 18 months to allow parliament the opportunity to enact legislation to remedy the constitutional violation.
Charlene May and Mandi Mudarikwa are attorneys at the Women’s Legal Centre in Cape Town and Qiqa Nkomo is a candidate attorney at the centre.