Author : Maryna Botha – STBB
28 January 2016
DISTINCTION BETWEEN SAME SEX AND OPPOSITE SEX COUPLES WHEN THERE IS NO WILL
DUPLAN V LOUBSER NO AND OTHERS (24589/2015)  ZAGPPHC 849 (23 NOVEMBER 2015)
Cohabiting couples are often cautioned regarding the need and prudence to properly arrange their affairs in an agreement to address, amongst other things, the division of assets when their relationship comes to an end. The legal consequences for both same sex and opposite sex partners, if this is not addressed in an agreement or will, are illustrated in this judgment. In the intestate succession scenario, unmarried opposite sex couples may find themselves in unenviable positions.
Duplan and Loubser lived, since 2003, in a permanent same sex life partnership to which they had undertaken reciprocal duties of support. The same sex partnership was not solemnised nor registered in terms of the Civil Union Act 17 of 2006 (the CUA).
In February 2015, Loubser died intestate. He had no descendants. Loubser’s brother was appointed as executor of the deceased’s estate.
Duplan argued that he was entitled to inherit intestate from the deceased. Duplan relied on the judgment of the Constitutional Court in Gory v Kolver NO and Others for the argument that he was the spouse of the deceased and was, as a consequence, entitled to inherit Loubser’s entire intestate estate by virtue of their same sex partnership, regardless of it not being solemnised and registered as a civil union in terms of the CUA.
The executor however maintained that Duplan was not a “spouse” within the meaning of section 1(1)(a) of the Intestate Succession Act 81 of 1987 (the ISA). He asserted that only a spouse in a same sex partnership which is solemnised and registered as a civil union was entitled to inherit in terms of the provisions of section 1(1)(a). Section 1(1) of ISA reads as follows:
“If after the commencement of this Act a person (hereinafter referred to as the ‘deceased’) dies intestate either wholly or in part, and –
(a) is survived by a spouse, but not by a descendant, such a spouse shall inherit the intestate estate;
(b) is survived by a descendant but not by a spouse, such descendant shall inherit the intestate estate;”
• The recognition of same sex marriages has a long history of prejudice, discrimination by family, friends, the public at large, and the law in general, not only in this country, but also elsewhere. The need for legislation to regulate the position of gays and lesbians who want to marry was long overdue when the CUA came into effect on 30 November 2006. The objectives of the CUA are to regulate the solemnisation and registration of civil unions by way of either a marriage or a civil partnership and to provide for the legal consequences of the solemnisation and registration of civil unions.
• The legal consequences that flow from such a civil union are similar to those accorded to heterosexuals who marry in terms of the Marriage Act. Gays and lesbians are thus afforded a choice to enter into a formal relationship, recognised by law, which enjoys the same status and privileges together with the responsibilities that heterosexual couples enjoy who enter into a marriage relationship.
• The CUA does not aim to alter the position of heterosexual couples who have elected not to marry, nor does it aim to alter the position of gay and lesbian couples who have elected not to solemnise and register their same sex partnerships.
• However, in Gory v Kolver NO, the Constitutional Court employed the “reading-in” method to cure the unconstitutionality of section 1(1) of the ISA by declaring that it was unconstitutional that the word “spouse” in this section did not also include the words “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”. That court thus declared that with effect from the date of the order, section 1(1) of the ISA was to be read as though the word “spouse” included a “partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”. At the time of this judgment, the CUA had not yet been passed.
• The order was aimed at permanent same sex life partnerships in which the partners have undertaken reciprocal duties of support to inherit intestate in the absence of legislation recognising same sex marriages.
• The rationale for using reading-in to extend the ambit of statutory provisions applicable to spouses/married couples to include permanent same-sex life partners was that same-sex couples are unable legally to marry and hence to bring themselves within the ambit of the relevant statutory provision. Once this impediment is removed, then there would appear to be no good reason for distinguishing between unmarried heterosexual couples and unmarried same-sex couples in respect of intestate succession.
• Subsequent to the judgment being handed down, the CUA was passed. Same sex civil unions are now recognised as equivalent to heterosexual marriages. That being the case, a distinction has to be drawn between same sex partnerships which are solemnised and registered and those which are not. The former is recognized by law as civil marriages and the latter together with heterosexuals who have elected not to marry, are not.
• The order granted by the Constitutional Court in Gory v Kolver NO however obliges the present court to “read in” the wording in the ISA since legislation had not yet been passed to amend the exclusion of same-sex partners from the ISA, despite the CUA having cured the unconstitutionality of the non-recognition of same sex marriages.
• The Constitutional Court’s order thus still stands and a reading-in is required. This has the effect, however, that despite a partner in a same sex partnership solemnised and registered in terms of the CUA being for all intents and purposes a “spouse” as envisaged by s 1(1)(a) of ISA, the following words had still to be “read in“ after the word “spouse”: “or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”.
• The present court could therefore not consider whether there were specific reasons why Duplan and Loubser elected not to solemnise and register their same sex partnership in terms of the CUA or whether the reading-in was still required. (The effect is however discriminatory against unmarried heterosexual couples.)
It was thus ordered that Duplan was the only intestate heir of the estate of Loubser.
The Judgmen be viewed here: