An unexpected win for unmarried couples

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Unmarried couples do not have the same rights as married couples in South Africa.
Unmarried couples do not have the same rights as married couples in South Africa.
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Changing the law is no easy task. But one woman’s day in court has ended in a judgement that will dramatically improve the rights of unmarried, same-sex couples.

Jane Bwanya, a former domestic worker, challenged the provisions of the Intestate Succession Act, and won.

She had been denied the right to inherit her life partner’s estate, according to GroundUp, which included a guest house in Camps Bay and a flat in Sea Point.

Jane and her partner, Anthony Ruch, had been in a relationship for over six years and they moved in together four months after meeting in February 2014. But when he unexpectedly died, his estate was taken over by the Master of the High Court because he had left everything to his mother who was already dead.

Jane and Anthony’s chauffeur laid claim to the estate but both parties were rejected. It was then she decided to take the matter to the High Court as she believed it discriminated against unmarried life partners.

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Acting Judge Penelope Magona agreed and ruled that the Intestate Succession Act  was unconstitutional. She also ruled that some sections of the Maintenance of Surviving Spouses Act were unconstitutional as well.

The court held that the Intestate Succession Act should be read to include the following words – spouse “or partner in a permanent opposite sex life partnership in which the partners had undertaken reciprocal duties of support”.

This ruling means that going forward, the same laws that apply to married couples will now apply to heterosexual, non-married couples as well, lawyer at Jerry Nkeli Attorneys, Pumla Moyo tells Drum. 

Partners choosing to remain unmarried is increasingly common – but it has been a risky choice in South Africa.

There’s no such concept as common-law marriage in this country. People who live together aren’t regarded as legal spouses, no matter how long they’ve lived together or whatever the reasons are for them not marrying. This means they’re not covered by the rights of conventionally married couples.

In terms of intestate succession, if one partner dies the other doesn’t inherit automatically as they would if they were legally married.

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However, there are two measures that unmarried couples can be put in place to protect each other, according to law firm Simon Dippenaar & Associates.

The first is to both have wills that name each other as beneficiaries.

The second is to draw up a written agreement in which they detail the rights and duties of each in their live-in relationships. This is called a cohabitation agreement, which is like a contract between partners that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

Naturally costs are involved in this, which may be part of the reason a couple did not marry in the first place.

But cohabitation is recognised and a common-law spouse may receive pension fund benefits if nominated by the member as a partner. A common-law spouse who qualifies under the definition of a dependant within the rules of that fund may also receive pension benefits.

Unmarried relationships can be registered under the Civil Union Act. The registered relationship is then officially a civil union. Under these circumstances, a couple’s rights depend on the kind of matrimonial property regime they register – out of community of property (with or without accrual) or in community of property.

Marriage options

In community of property means a couple shares all assets and each partner is entitled to half of the joint assets. This includes liability for each other’s individual debts.

Out of community of property without accrual means each partner’s assets remains theirs. That includes assets you bring into the relationship and acquire after registering the civil union.

Out of community of property with accrual means both parties retain the assets they each had prior to registration of the civil union but the growth in their respective estates is divided in the event of the civil union being ended, either by death or divorce.

If there is no antenuptial contract in place, you are automatically entered into a marriage in community of property. 

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