Dawn of a new era for permanent life partners: from Volks v Robinson to Bwanya v Master of the High Court

Abstract

SUMMARY The laws in South Africa pertaining to marital affairs have for a long time developed from a conservative form to a non-conservative one. This can be denoted from the passing of legislation such as the Recognition of Customary Marriages Act 120 of 1998, affording women in customary marriages the same protection as those in civil marriages as well as the Civil Union Act 17 of 2006, allowing same-sex partners to formalise their union. Since the advent of the Constitution it can therefore be concluded that the courts and legislature have worked relentlessly to ensure the equal enjoyment of rights to all South African people. Regardless of the immense efforts to develop this area of law, certain groups still remain unprotected and often rely on piece-meal protection often derived from court decisions. Such groups include heterosexual parties to a permanent life partnership. Although such permanent life partnerships are acknowledged in South Africa, there is no legislative protection with regards to maintenance or inheritance at the dissolution of the union. This is different to formalised unions such as marriage and civil unions with extensive legislation concerning the aftermath of such unions. A plethora of cases suggests that, this position has been challenged many times to no avail. In 2005, the Constitutional Court in Volks v Robinson, held that the distinction between married and unmarried couples could not be held to be unfair as a marriage encompassed legal reciprocal duties which were not present in a non-marital union. Effectively, permanent life partners could not claim maintenance or inheritance from the estate of their deceased partner. In a recent welcomed decision by the High Court, a heterosexual permanent life partner was permitted to inherit from the estate of her deceased partner. This article discusses the Constitutional Court case and the recent High Court case to elicit that South Africa is headed towards positive development with regard to marital unions and those akin to such unions.