Financial Planning considerations for those in long-term relationships: The definition of "spouse".

The inequality created by the silence around who is deemed to be a spouse in the Intestate Succession Act, and our legislature’s apparent inability or unwillingness to rectify or to remedy the situation has led to numerous court cases, seeking justice and fairness for spouses in religious, same-sex and heterosexual long-term marriages and partnerships.
 
To highlight the problem, let us first look at some definitions of spouse in legislation. The Income Tax Act 58 of 1962, similarly to the Estate Duty Act 44 of 1955, defines a spouse as:
 
in relation to any person, means a person who is the partner of such person –
 
(a)   in a marriage or customary union recognised in terms of the laws of the Republic;
(b)   in a union recognised as a marriage in accordance with the tenets of any religion; or
(c)   in a same sex or heterosexual union which is intended to be permanent,
 
and "married", "husband" or "wife" shall be construed accordingly: Provided that a marriage or union contemplated in paragraph (b) or (c) shall, in the absence of proof to the contrary, be deemed to be a marriage or union out of community of property.
 
The Pension Funds Act 24 of 1956 defines spouse as:
 
a person who is the permanent life partner or spouse or civil union partner of a member in accordance with the Marriage Act, 1961 (Act No. 68 of 1961), the Recognition of Customary Marriages Act, 1998 (Act No. 68 of 1997), or the Civil Union Act, 2006 (Act No. 17 of 2006), or the tenets of a religion;
 
The Immigration Act 13 of 2002 defines spouse as:
 
a person who is a party to—
(a)   a marriage, as defined in the Act; or
(b)   a permanent homosexual or heterosexual relationship as prescribed.
 
Conversely, the Intestate Succession Act does not include a definition for spouse and is silent on who a spouse may be. Over the past twenty years this has led to several court cases, to question and decide on who actually qualifies as a spouse. This could easily have been remedied by the legislature enacting changes to the Act, including a definition for spouse.
 
Up until recently, case law may have established an impression that courts have only been concerned with specific legislative discrimination and that development was limited to religious marriages and same-sex partners who did not previously enjoy the freedom of choice to solemnise their partnership.
 
It seems heterosexual unions or long-term partnerships were not afforded the same protection, in case of intestacy, as other long-term relationships. A recent court case (Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020]) seems to have changed the direction of our courts on this matter.
 
In Bwanya, evidence before the court was that the couple met early in 2014, while Bwanya was waiting for a taxi in Camps Bay to take her to Cape Town station to send goods to her family in Zimbabwe. Ruch, the deceased, took her to the train station and according to the court case they went on their first date that evening. Four months after the first meeting Bwanya moved in with the deceased. Two of the deceased’s friends described how the couple were always together and that Mr Ruch “treated her like a princess”. It seems they were organising a trip to Zimbabwe so that the deceased could pay lobola. He, however, died unexpectedly without a valid Will before all that could happen. He was not previously married and he had no surviving relatives. Bwanya, because of their long-term partnership, asked the court to be recognised as spouse to enable her to inherit intestate from the deceased.
 
Acting Judge Magona said that there was no justification put forward for the unfair discrimination which has led to the infringement of the right to equality and dignity. It was decided that section 1(1) of the Intestate Succession Act was unconstitutional and invalid insofar as it excludes the life partners in permanent opposite-sex life partnerships, who have undertaken reciprocal duties of support, from inheriting in terms of this Act.
 
People in long-term relationships should take note that legislation may or may not protect the other partner and courts are increasingly willing to protect partners in long-term relationships. So, make sure that you do not have to go to court, by getting a valid Will in place, and ensure that your financial plan takes the consequences of long-term partnerships into account, especially also regarding your retirement benefits, where permanent life partners are recognised in terms of the Pension Funds Act.

Wessel Oosthuizen, CFP®
Managing Director