Cohabitation, also referred to as a permanent life partnership, is defined as a relationship where couples stay together and undertake a reciprocal obligation to support each other. It is an informal and unregulated long-term partnership which mirrors a formal marriage. Despite the lack of regulation, this concept has become very common in South Africa and research has proven an increasingly high number of people living as permanent life partners.
The lack of regulation meant that there were no legal recognition of such a relationship and the consequences thereto. Couples in permanent life partnerships were not entitled to the legal benefits which married partners were, such as inheriting intestate after the death of a partner, as such, a partner was not considered to be “a spouse” in accordance with the narrow definition of a spouse in terms of Section 1(1) of the Intestate Succession Act.
The legal position was challenged and ultimately changed by the case of Bwanya v Master of the High Court 2022 (3) SA 250 (CC). In this case the Constitutional Court assessed whether a surviving partner in a permanent heterosexual life partnership and in which the partners had undertaken the reciprocal duty to support each other, is entitled to inherit intestate from the estate of the deceased partner. The court held that the exclusion of a partner in a permanent life partnership from the definition of surviving spouse in terms of Section 1(1) of the Intestate Succession Act constituted unfair discrimination based on marital status. The court argued that the absence of a formal marriage should not put couples at a disadvantage if all the substantive characteristics of a marriage were present in their relationship. As a result of this case, Section 1(1) of the Intestate Succession Act is now interpreted to include permanent life partner in the definition of surviving spouse.
The precedent established in the Bwanya case was confirmed in the case of LL v CH NO and others [2023] ZAGPJHC. The court in the LL case ruled in favour of the surviving partner, ordering that he is entitled to inherit 50% of the deceased’s estate.
Currently, surviving partners in permanent life partnerships are entitled to inherit intestate from the estates of deceased partners, as they qualify as surviving “spouses” in terms of Section 1(1) of the Intestate Succession Act. However, partners still need to provide evidence that the elements of a formal marriage were present in their permanent life partnership. Despite legal advancements, gaps remain in the protection afforded to cohabitants under South African Law. As a result, life partners are therefore encouraged to enter into a cohabitation agreement or formalize their relationship through a formal marriage procedure.
Elize Krause, assisted by Adivhaho Mudanalwo
