When the Intestate Succession Act was enacted in 1987, it provided for surviving spouses to inherit from the deceased’s estate if their spouse had passed away without a will.

However, in 2006, in Gory v Kolver NO & Others, the Constitutional Court recognised that because same-sex marriage was not recognised within our legislative framework at the time, the Act was unconstitutional and needed to be amended – so that its definition of a surviving spouse included the surviving same-sex life partner of the deceased.

Then, in the recently decided case of Bwanya v the Master of the High Court, the Constitutional Court ruled that the Act also needed to give recognition to opposite-sex life partnerships.

Writing in the Mail & Guardian, the Women’s Legal Centre’s attorneys Charlene May and Mandi Mudarikwa, and candidate attorney Qiqa Nkomo, say their centre supported the challenge to the constitutionality of the 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 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 authors say the court relied on the evidence provided by the centre, ‘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’.

Noting we live in a ‘sexist, patriarchal and homophobic society’, the court found that leaving an intimate relationship, even though such an option exists, can be extremely challenging for many women.

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.

According to the authors, 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 3.2m South Africans were cohabitating with their intimate partners in 2016.

The court concluded that there was no justifiable 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.

This exclusion in the Act, therefore, amounts to unfair discrimination and the Department of Justice has 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.’

Full analysis in the Mail & Guardian