The Civil Union Act 17 of 2006 (CUA) legalised and regulated same-sex marriages. But what happens in a same-sex permanent partnership where a partner dies intestate, meaning without a will? Can the surviving partner inherit the estate?

On 30 November 2016, the Constitutional Court handed down judgment in Laubscher N.O. v Duplan and Another (CCT234/15) [2016] ZACC 44 [2017] (2) SA 264 (CC) (Laubscher). This matter dealt with the continued recognition of intestate inheritance rights for same-sex permanent partners.

Background to the court case

The deceased and respondent lived together for twelve years during which time they reciprocally supported each other. Their partnership was neither solemnised nor registered in terms of the CUA. The deceased died intestate, meaning he had no will and his estate fell to be devolved in terms of the laws of intestacy, The Intestate Succession Act 81 of 1987 (ISA).

The legal question is whether the laws of intestacy recognise the respondent and deceased’s partnership regime as one under which benefits of inheritance can be granted, the questioned provision being section 1(1) of the ISA.

The applicant is the brother of the deceased (and only surviving child of their parents) as well as the executor of the estate.

Gory v Kolver case found ISA unconstitutional

The court in Gory v Kolver 2007 (4) SA 97 (CC) (Gory) adopted a reading-in exercise to remedy section 1(1) of the ISA after it had been found to be unconstitutional insofar as it excluded from its provision the words, “or partner in a permanent same-sex partnership in which the partners have undertaken reciprocal duties of support” from inheriting.

Thereafter, the CUA was enacted to make provision for the registration and solemnisation of civil unions between same-sex couples. The CUA provides similar rights to partners in same-sex marriages in terms of the Marriages Act 25 of 1961 as with those of opposite sex marriages. It does not give the same recognition to life partners who elect not to marry or same-sex partners who elect not to solemnise and register their relationship.

The Laubscher matter thus concerns the consequences and effects of Gory following the enactment of the CUA.

The judgment is written by Mbha AJ, while a short dissent from Froneman J was also included.

What were the arguments?

Applicant argued that, notwithstanding Gory, the CUA required solemnisation and registration of a partnership in order for it to be recognised and enjoy the benefits provided by its protective legal ambit. In the premise, respondent could not qualify for inheritance under ISA.

Respondent argued that the Gory judgment gave him the right to inherit.

The essential arguments were:

  1. Applicant argued that Gory was an interim measure effective until Parliament resolved the underlying mischief (being the impugned provision or the unconstitutionally regarded section 1(1) of ISA). Respondent argued that Gory is not an interim remedy that was to expire when the CUA came into force. Gory amends section 1(1) of the ISA which amendment must endure indefinitely until repealed or replaced.
  2. Applicant argued that section 13(2)(b) of the CUA brought same-sex couples out of the legal cold and thus the CUA repeals Respondent argued that the CUA does not repeal Gory insofar as the positions stemming from each are not compatible.
  3. The maxim cessante ratione legis cessat ipsa lex (meaning when the reason for the law falls away, the law itself ceases to exist) was argued to have application by applicant. This is in so far as section 13(2)(b) of the CUA replaced the law created through reading in by Respondent, on the other hand, argued that the purpose of Gory is to qualify same-sex permanent partners as capable of inheritance despite their marital status. In the premise, the purpose of the law has not fallen away since only some of the people protected by Gory are now also protected under the CUA.
  4. To add impetus to his argument, the applicant relied on the judgment of Volks N.O. v Robinson and others (2005) 5 BCLR 446 (CC) (Volks) wherein the court noted that partners to a same-sex relationship have the choice whether or not to marry and thus are afforded the same rights as opposite-sex couples. Thus to apply Gory further would result in a discrimination to opposite-sex partners. The logic of similar reciprocal duties of support does not necessitate equalisation in that particular way. To the contrary, it creates a new form of unfair discrimination against unmarried couples who do not wish to marry.
  5. In addition the amicus curiae (friend of the court) submitted that there exists no sound policy reason to undo the protections afforded in There has since, for over 10 years, been no action from the Legislature in this regard. To recognise different family forms and relationships is more in line with our Constitutional tenets.

The Court’s decision…

  1. The reading-in remedy in Gory as an ‘interim measure’?  At the time the Gory order was made, the court was alive to the fact that imminent legislation would be enacted, but nevertheless employed a reading-in remedy to cure the unconstitutionality of section 1(1) of ISA. The court made it clear that this was to persist for an indefinite period, subject to amendment or repeal by Parliament. More than 10 years later, Parliament has failed to effect relevant legislation. Thus the court cannot agree the remedy provided in Gory is an interim which is no longer of any force.
  2. The interplay between the Gory order and CUA.  Has the mischief which Gory sought to resolve been resolved in the CUA, either through a contextual or interpretative approach? The enactment of the CUA entitled same-sex couples to ‘marry’ and thus enjoy the same benefits and status as heterosexual couples. What is left to be remedied by Parliament is the situation where same-sex couples who elect not to ‘marry’ in terms of the CUA but nonetheless provide reciprocal duties of support, do not share in the benefits that heterosexual couples do.
  3. Whether the reason for the law has fallen away.   The reasoning above self-evidently proves that the reason for the law has not fallen away.

The Volks case

The question in Volks was whether the protection afforded in the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) to a ‘survivor’ could extend to include a surviving permanent life partner. The present matter is concerned with a right to benefit in terms of section 1(1) of the ISA.

Froneman J provides a succinct argument regarding the imports of Volks. What appears is that the difference between the subject-matter of intestate succession and post-death maintenance of spouses does not adequately clarify why this principle of legitimate legislative choice, preferring the formality of marriage, should apply in one case but not the other. In Volks, the marriage created a duty of support, whereas in Gory, the existence of a factual duty of support provided the justification for removing the impediment of marriage in order to attain legislative protection.

Courts have approached this by reasoning a) the discrimination lay in the lack of entitlement to marry and remedied this by removing the disentitlement, and b) to recognise the many forms of cohabitation and reciprocal duties of support outside of formal marriage institutions. The former relates to an unreasoned moral preference to a marriage-centric approach.

In conclusion, same-sex partners have intestate succession rights

The enactment of the CUA (specifically section 13(2)(b)) does not go so far as to amend section 1(1) of the ISA as required by Gory. In the premise, same-sex partners will continue to enjoy intestate succession rights under section 1(1) of the ISA in terms of Gory, and until such time as the legislation is specifically amended or the judgment repealed.

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