Has the law helped or hindered same-sex partnerships?

Has the law helped or hindered same-sex partnerships?

By Lesego Vakalisa, Legal Intern


A approached our offices, seeking the pro bono assistance of an attorney regarding the estate of his deceased spouse B.

Upon examining the documents provided by A, we realised that his case was an interesting one and touched on a subject that often falls through the cracks.

The facts of the case are as follows: A , who is not a South African citizen, met and fell in love with B. In January 2002 they entered into a life partnership agreement and later concluded a same sex partnership agreement, as same sex marriages were not recognised at the time.

A and B were assisted by an attorney who drafted an affidavit concerning a life partnership between them under the Aliens Control Act 96 of 1991. In April 2002 the Aliens Control Act was replaced by the Immigration Act 13 of 2002.

During the existence of their partnership they purchased immovable property registered in both their names. They subsequently registered a second bond over the property in 2006 which was granted by a reputable financial institution.

In 2010, B passed away intestate leaving no heirs. Although A received 50% of B’s pension fund, B’s family received the balance thereof. B’s family took control of all B’s other assets to the exclusion of A.

A approached the Master of the High Court’s office to be appointed joint executor of B’s estate but his application was rejected by the Master who considered that their partnership was not recognised.

A was concerned that the agreement that he and B entered into in January 2002 had been rendered null and void when the 2002 Immigration Act came into effect with additional requirements to substantiate the affidavits with a notarial contract, which A and B never signed. Even after the Civil Union Act 17 of 2006 came into effect, A and B did not enter into a union in accordance with this Act as they believed that their partnership was at all times valid.

A informed us that he felt his rights were being violated and he wished to claim his rightful inheritance as the sole heir and surviving spouse of B.

He needed clarity as to whether or not his partnership with B was legally valid and whether he was legally entitled to inherit from B’s estate, and he wished to know his legal standing as co-owner of the said property.

The facts of the matter are that the parties were neither married nor entered into a civil union in terms of relevant legislation, they purchased property which was registered in both their names, and B died intestate.

We considered the matter and concluded that A would have to bring an application to the High Court to declare the life partnership agreement signed in 2002 to be declared a civil union in terms of the Civil Union Act. If successful A would be the intestate heir in terms of Section 1 (a) of the Intestate Succession Act 81 of 1987.”

Click here for our complete December 2017 Newsletter