Death before wedding puts inheriting by opposite-sex life partners before ConCourt

They might not be formally married, but opposite-sex life partners conduct their lives as spouses.

However, because a formal marriage ceremony is not concluded, individuals in life partnerships do not benefit from the laws which apply to married people.

This is according to the Women's Legal Centre, before the Constitutional Court on Tuesday. The organisation is one of two friends of the court which presented arguments before the court in support of an application by Jane Bwanya.

Bwanya, a former domestic worker, wants the court to confirm an order made by the high court in Cape Town last year that the Intestate Succession Act is unconstitutional because it does not allow for surviving partners in opposite-sex life partnerships to inherit from their late partners' estates.

Bwanya was "swept off her feet" by a relatively wealthy businessman, Anthony Ruch, in 2014. They were in a permanent life partnership until Ruch, 57, died in April 2016 - before the couple could get married. He did not leave a will, and the heir he had appointed was his mother, who had died in 2013.

The deceased estate comprised, among other things, R6.7m from the sale of his Camps Bay house by the executor.

Bwanya wanted to claim from the estate as a surviving spouse but the executor rejected her claim. It was because of this rejection that Bwanya went to the high court.

The high court declared that the Intestate Succession Act was invalid to the extent that it excluded the surviving partner in a permanent opposite-sex life partnership from inheriting.

However, before the challenge was heard by the high court, Bwanya reached a settlement with the executors of the estate and she received R3m in full and final settlement.

The order of constitutional invalidity made by the high court needs to be confirmed by the Constitutional Court for it to have effect.

Counsel for the Women's Legal Centre, Ashleigh Christians, told the court that women in life partnerships were more vulnerable due to the absence of legal consequences when those relationships ended.

She said the absence of legal recognition for life partnerships constituted indirect discrimination on the basis of race and gender.

She said statistics showed that black women were particularly vulnerable and deserving of legal protection as the numbers of life partnerships have almost tripled from 1996 - when there were 1.2 million partnerships - to 2011 when there were 3.5 million  partnerships.

Counsel for Bwanya, Robert Stelzner SC, said the case was about benefits which were not extended to survivors of heterosexual life partnerships, but were available for survivors of same-sex life partnerships.

"This has created a differentiation between same-sex life partners and heterosexual life partners."

He said a survivor in a same-sex life partnership was allowed to inherit under the Intestate Succession Act, while a survivor in the opposite-sex life partnership cannot inherit.

"The only difference between the two is that she is a survivor of a heterosexual life partnership. This is a prohibited ground for differentiation," Stelzner said.

Mushahida Adhikari, counsel for the second friend of the court, the Commission for Gender Equality, said the case was about the constitutional place of couples who do not marry, whether by choice or not. She said the act differentiates between persons based on marital status, gender and sex, and sexual orientation and said the differentiation amounted to discrimination.

Counsel for the minister of justice, Karrisha Pillay, said the minister will abide by the decision of the court.

The court reserved judgment.

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