Living together as husband and wife without concluding a civil marriage, whether as a conscious or unconscious choice, occurs in the vast majority of instances without an appreciation of the consequences.
Take, for example, the facts in Bwanya v Master of the High Court, Cape Town and Others in the judgment handed down on 1 October 2020. B and R met in 2014 and shortly afterwards moved in together. R always treated B as his wife and to friends, their relationship at all times appeared to be that of a loving couple. R died unexpectedly in April 2016, before plans to negotiate lobola and celebrate a wedding had materialized.
B lodged claims against R’s estate, in her capacity as R’s spouse and intestate heir. The executor and Master, however, rejected the claims as B was not R’s “spouse”, as the law requires for such a claim.
It was successfully argued that heterosexual partners in a permanent relationship should, for purposes of the Intestate Succession Act (‘ISA’), be regarded as “spouses” and hence entitled to benefit as intestate heirs. (Our courts have before found that partners in a permanent same-sex relationship should be regarded as “spouses” for purposes of ISA.)
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