Unmarried same-sex couples more favourable legal position than heterosexual counterparts

July 1st, 2016



By Bradley Smith

The legal position pertaining to persons who cohabit out of wedlock (domestic partners) in South Africa is complex. Contrary to certain other jurisdictions, a domestic partnership, irrespective of its duration, is not deemed to be a ‘common law marriage’. Instead – and despite the recommendations of the South African Law Reform Commission in its 2006 ‘Report on domestic partnerships’ (www.justice.gov.za, accessed 2-6-2016) and the publication of a draft Domestic Partnerships Bill 2008 (GN36 GG30663/14-1-2008) – South Africa has no dedicated domestic partnership legislation. The general rule thus remains that none of the invariable consequences of marriage are automatically attached to such a relationship (Butters v Mncora 2012 (4) SA 1 (SCA) at para 11). Consequently, domestic partners must self-regulate the legal consequences of their relationship by invoking the ordinary rules and remedies of the law (such as contracts, wills or unjustified enrichment). They may also, where apposite, rely on piecemeal recognition that has, particularly since the advent of democracy, been conferred on such partnerships by the judiciary and the legislature (see J Heaton South Africa Family Law 3ed (Durban: LexisNexis 2010) at 243; B Smith ‘The dissolution of a life or domestic partnership’ in J Heaton (ed) The law of divorce and dissolution of life partnerships in South Africa (Cape Town: Juta 2014) at 389).

As Sachs J stated ten years ago in Minister of Home Affairs v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) at para 125, domestic partnerships are, therefore, still governed by ‘a patchwork of laws that [does] not express a coherent set of family law rules’. This position is unsatisfactory, for a number of reasons. The first – and most obvious – is that it is unacceptable, given the steadily increasing incidence of cohabitation in South Africa, for the legislature to continue to ignore the plight of domestic partners. According to the 2011 Census more than 3 million or 8,6% South Africans were involved in relationships of this nature. In 1996 this proportion was 5% and in 2001 it was 7,8% (Smith in Heaton (op cit) at 393). Secondly, the position sketched above entails that legal practitioners must engage in a continuous stock-taking process to ascertain the rights (and duties) of domestic partners. This process is cumbersome and leads to uncertainty for attorneys and the public alike. This problem is compounded by the fact that the existing legal position is anomalous because, as will be seen below, unmarried same-sex couples continue to find themselves in a more favourable legal position than their heterosexual counterparts. Although the acuteness of this anomaly has steadily been blunted over the last few years (see para on the next page), a major inconsistency that remains is that unmarried same-sex couples continue to be entitled to mutual rights of intestate succession while their heterosexual peers are not (Duplan v Loubser NO and Others (GP) (unreported case no 24589/2015, 20-11-15)). Although this position appears to be stalemated due to the precedent-setting nature of the Constitutional Court’s judgment in Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC), I will contend, in this article, that it is not. In this manner I hope to strengthen the vital interrelationship between practice and academia by sharing some of the findings of my recent research with practitioners who may be approached by clients faced with this problem.

The road thus far:  Piecemeal recognition and the creation of a deadlock

When the Civil Union Act 17 of 2006 (the Act) was enacted, South Africa became only the fifth country in the world to legalise same-sex marriage. The first step towards this development was taken eight years earlier when, in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (NCGLE), the crime of sodomy was found to be incompatible with the new constitutional order. This paved the way for our courts to permit a number of incremental extensions of certain spousal benefits to same-sex domestic partners on the basis that withholding these benefits from them, while simultaneously prohibiting them from marrying, amounted to unfair discrimination on the basis of sexual orientation and also violated the constitutional right to dignity. These included –

  • the right to qualify for spousal medical aid and immigration benefits (Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T) and the NCGLE matter);
  • entitlement to the same pension benefits as the surviving spouse of a deceased judge (Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC));
  • the right to institute the common law dependant’s action for loss of support in the case of the demise of a breadwinner (Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA));
  • the possibility of joint adoption and guardianship of children (Du Toit and Another v Minister for Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC)); and
  • the right to inherit on intestacy (Gory v Kolver NO and Others (Stark and Others Intervening) 2007 (4) SA 97 (CC)).

The latter development is of great significance for this article. In the Gory matter, the Constitutional Court used the body of jurisprudence sketched above as a platform from which to order the words ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’ to be read-in after the word ‘spouse’ in the Intestate Succession Act 81 of 1987 (the ISA) so as to permit a partner who complied with these threshold criteria to inherit in the same manner as a surviving spouse. This judgment was delivered merely one week before the Act was enacted. Importantly, in the Gory matter, the court – aware that the legalisation of same-sex marriage was imminent, but unsure as to how the legislature would facilitate this – made it clear that the piecemeal protection, that had been conferred on same-sex unmarried couples up to that point by the courts, would continue to stand until the legislature expressly intervened (Gory at paras 27 – 31). As it turned out, the Act did not curtail any of this protection in any way (Duplan para 19). Same-sex couples who elected to remain unmarried despite being entitled to marry would therefore remain entitled to these benefits.

The position in respect of heterosexual domestic partners is very different. This is due to the majority judgment of the Constitutional Court in the Volks matter. In casu, R, the female surviving partner in a domestic partnership that had existed between herself and Mr S for some 16 years, contested the constitutionality of her inability to claim maintenance as a ‘spouse’ from S’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. On the facts it was clear that she and S had mutually supported one another during the existence of their relationship. Her exclusion from the Act was nevertheless held neither to constitute unfair discrimination against her on the ground of marital status, nor to violate her constitutional right to dignity. The court’s rationale was that by choosing not to marry, despite being legally entitled to do so, S and R had elected to opt out of an important social (and internationally recognised) institution that – in contrast to a domestic partnership – created moral and legal obligations for the spouses involved. One such obligation was the ex lege creation of a reciprocal duty of support between spouses stante matrimonio, which duty was extended beyond the death of a spouse by the Act. Consequently, the Act’s failure to cater for domestic partners could not ‘be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage’ (para 56, my italics). This failure also did not violate R’s right to dignity, as she was ‘not being told that her dignity [was] worth less than that of someone who is married … [but was simply being] told that there is a fundamental difference between her relationship and a marriage relationship in relation to maintenance’ (para 62).

The message sent by Volks was therefore clear: If heterosexual domestic partners choose not to marry, they must abide by the consequences of that choice. In particular, they must reconcile themselves to the fact that withholding any benefit ‘uniquely attached’ to a marriage by operation of law was constitutionally tenable. On the other side of this (unbalanced) equation, same-sex couples who remained unmarried would, as clearly stated in Gory and recently confirmed in the Duplan matter, continue to be entitled to the benefits that had been extended to them prior to the promulgation of the Act. Only legislative intervention would change this. Failing this, the only way for the position of heterosexual domestic partners to improve would be if a loophole in the Volks ratio could be found. Although subsequent developments have contributed towards balancing this equation (see ss 40 and 231 of the Children’s Act 38 of 2005 (regarding, respectively, children conceived by artificial fertilisation and the persons who may adopt a child) and Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA) in which the dependant’s action was also extended to surviving heterosexual domestic partners) the anomaly in respect of intestate succession persists. In fact, as rights of intestate succession in terms of the ISA have, since democracy, also been extended to the surviving spouses of customary marriages (Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC)); and marriages concluded only in terms of religious law (see Daniels v Campbell NO and Others 2004 (5) SA 331 (CC); Hassam v Jacobs NO and Others 2009 (5) SA 572 (CC) and Govender v Ragavayah NO and Others 2009 (3) SA 178 (D)), the heterosexual domestic partnership is the only recognised form of intimate relationship that remains excluded from this benefit.

Given that the Domestic Partnerships Bill (which would have solved this problem – see clauses 20 and 31 thereof) has languished in obscurity for almost a decade, legislative intervention appears to be unlikely. Could litigation, aimed at removing this anomaly, be a viable option for a surviving heterosexual domestic partner?

A strategy for litigating for a right of intestate succession

In another article I wrote entitled ‘Intestate succession and surviving heterosexual life partners using the jurists laboratory to resolve the ostensible impasse that exists after Volks v Robinson’ (2016) 133.2 SALJ 284, I used a hypothetical set of facts in order to test the viability of finding a way around the precedent-setting ratio in Volks. (In what follows I will attempt to provide a summary of my views.)

In essence, a practitioner must be satisfied that a potential litigant whose domestic partner has died intestate is able to prove that –

  • the relationship was permanent; and
  • during the relationship, the partners had either expressly or tacitly created a contractual reciprocal duty of support (on proving these requirements, see Smith in Heaton (op cit) at 407 – 427).

The next step is to decide on the angle of attack. Two possibilities present themselves. First, the survivor could argue that the prevailing position constitutes unfair discrimination on the ground of marital status. This would, however, presumably be met with the counter-contention (for example, by the deceased’s relatives) that the ratio in Volks (and its approach to choice) has disposed of this possibility. In the alternative, the survivor could argue that the unfair discrimination is based on the ground of sexual orientation, because same-sex domestic partners are still entitled to this right even if they remain unmarried. This argument could conceivably be challenged by relying on MC Wood-Bodley’s contention (‘Intestate succession and gay and lesbian couples’ SALJ 2008 46 at 54 – 60) that the privileged position of same-sex partners is justified because the prevalence of homophobia in our society deprives such couples of a ‘real’ choice to marry. (This argument could be bolstered by the view of H de Ru ‘A critical analysis of the retention of spousal benefits for permanent same-sex life partners after the coming into operation of the Civil Union Act 17 of 2006’ (2009) Speculum Juris III at 122 – 126 who embroiders on Wood-Bodley’s argument by insisting that the status quo should be entrenched as an affirmative action measure).

My advice is not to opt for either of these alternatives, but instead to combine them. This could be done by arguing that the law unfairly discriminates against heterosexual partners on the intersecting grounds of marital status and sexual orientation (see National Caolition for Gay and Lesbian Equality and Others v Minister of Home Affairs 2000 (2) SA 1 (CC) paras 30 – 40). This permits the argument that the ratio in the Volks matter is not binding on the future court because – by virtue of the Gory matter and other case law – the right to inherit on intestacy is no longer a benefit that is ‘uniquely attached to marriage’. In post-1994 South Africa this right has been developed so as not only to be available to spouses in religious marriages that are not formally recognised, but has in fact been extended beyond the realm of marriage per se by the Gory matter. (For a comparable argument in the context of the dependant’s action, see Paixão at paras 24 – 27). Thus freed from the shackles of precedent, the hypothetical court would be enabled to re-evaluate the Volks matter and the court’s approach to choice and to appreciate, as acknowledged in Paixão (paras 31 – 34), that domestic partnerships often involve vulnerable members of society for whom the ‘choice’ to marry is illusory ‘for social, cultural or financial reasons’. These reasons are compelling enough to permit the conclusion that in South Africa neither same-sex nor opposite-sex domestic partners are necessarily able to exercise a free and unfettered choice to marry. Therefore, it constitutes unfair discrimination to continue to recognise this lack of choice in the context of only one group but not the other, while both comply with the threshold criteria prescribed in Gory. Similarly, in my view the status quo could not be regarded as an affirmative action measure, because it fails to meet the requirements of the internal test in s 9(2) of the Constitution.

Having thus proved unfair discrimination, I contend that it follows that the right to dignity of the potential litigant has also been breached (see Hoffmann v South African Airways 2001 (1) SA 1 (CC) para 27).

The only remaining issue is for the court to decide on an appropriate constitutional remedy to broaden the ambit of the ISA. This is a complex issue that considerations of length do not permit me to address here. It will suffice to say that deciding on a remedy in this context raises a complication that has never been addressed in our constitutional jurisprudence, namely that the court a quo may be required to tamper with a standing reading-in order granted by the Constitutional Court. I have analysed this problem in another publication (BS Smith ‘Surviving heterosexual life partners and the Intestate Succession Act 81 of 1987: A “test case” for the fashioning of an appropriate constitutional remedy in cases of “judicially-generated residual discrimination”’ (2016) 32 SAJHR, to which I refer the reader.


In this article, I have attempted to provide a viable solution to the apparent deadlock that prevents surviving heterosexual domestic partners from accessing the right to inherit (a portion of) the intestate estate of their deceased partners. I hope that the arguments in this article (and the publications from which they are drawn) may assist practitioners who may be tasked with litigating on this issue in future.


Bradley Smith BCom LLD (UFS) is an Associate Professor in the Department of Private Law at the University of the Free State.


This article was first published in De Rebus in 2016 (July) DR 37.

De Rebus