SA law currently does not allow women living with a man to claim ‘spousal’ recognition from their deceased partners’ estates.

The Women’s Legal Centre (WLC) is now working to help redress this discrimination in the case – Jane Bwanya v The Executor of the Estate Ruch and Others – brought before the Western Cape High Court in which the WLC is the first amici curiae.

Judgment has been reserved.

Writing on the Mail & Guardian Online site, Charlene May – an attorney at the Legal Resources Centre – notes under SA law (the Intestate Succession Act (ISA) or the Maintenance of Surviving Spouses Act), only women who are recognised as spouses have the right to claim inheritance and maintenance in instances where their partner dies without a will.

However, many women continue to believe that domestic partnerships or cohabitation is recognised in our common law and that a ‘common-law marriage’ comes into existence when couples live together as if they were legally married.

‘There is no such thing in South African law as a common-law marriage. It is a historical term used by people who live together,’ she says, adding this is the reason women – particularly black women – find themselves destitute when there is a break-up or death.

Statistics SA figures show that in 1996, 1.2m were living in a domestic partnership.

In 2001, this rose to 2.4m people and by 2011 the figure had increased to 3.5m.

May notes that black women make up most people who self-identified as living in domestic partnerships.

May believes there has been a failure on the part of government to legislate the issue.

She says in 2009 the Department of Home Affairs sought comment on a draft Domestic Partnership Bill but there has been no further action taken since then. The Minister of Justice – the third respondent in the Bwanya case – has agreed to abide by the court’s decision, indicating that the state has no intention of addressing the discrimination through legislation.

Says May: ‘Couples in same-sex domestic partnerships enjoy the very same recognition under the definition of spouse in respect of the ISA. This development occurred because of litigation and the Constitutional Court itself finding that there was a need to recognise our changing society and to recognise the rights of those being discriminated against. It therefore stands to reason that the law in its current form is intolerable, as categories of classes of women in domestic partnerships are being created in which some have more rights than others.’

May believes the law must account for these differences to ensure ‘substantive’ equality.

‘A failure to do so will lead to continued discrimination, as it will have no effect on the lived reality of the very women which the law is required to protect’.

Full analysis on the Mail & Guardian Online site