LOVE, DEATH & DIVORCE: What you should know
South Africa is one of the few countries in the world that give people the freedom of testation and accept several types of marriages and cohabitation arrangements. Legislation is slowly catching up to the modern world, giving life partners more rights and responsibilities based on their living situations.
Love
Currently, South African Law recognizes three types of marriages which are registered at the Department of Home Affairs:
- Civil marriages, more commonly known as, a marriage in community of property, a marriage out of community of property, with, or without the accrual system. If a couple wishes to get married out of community of property, they must sign an antenuptial contract before they register their marriage.
- Civil unions or same-sex unions. These marriages enjoy the same rights, responsibilities, and legal consequences as a civil marriage, and
- Customary marriages, also known as traditional marriages, are regulated by the African customary laws in terms of traditions, unions and paying of lobola.
Many couples choose not to officiate a marriage and instead decide to live in cohabitation as if they were married (also known as a life partnership). Life Partnership Agreements can be concluded between the parties to establish responsibilities between the parties in the household. Deciding to get married, or not, does not only have an impact on your current living situation, but also if you should pass away, or decide to divorce or separate your loved one.
Death
Dying with a Final Will and Testament.
A person may leave his/her estate to whomever he/she wishes to, by drafting and signing a Final Will and Testament (“a Will”). A Will gives a person peace of mind that his/her final wishes will be honoured and sufficient provisions have been made for his/her loved ones. If, however, the deceased did not bequeath anything to his/her spouse in his/her Will, that spouse shall have no claim to inheritance from the deceased estate. The surviving spouse will be entitled to institute a maintenance claim against the estate, or an accrual claim if the spouses were married out of community with the accrual system.
Dying without a Final Will and Testament.
If a person passes away intestate, that means he/she did not leave a Will behind and the estate must be administered in terms of the Intestate Succession Act 81 of 1987 (“the Act”).
Up until the 31st of December 2021, only certain people could enjoy the right to inherit, namely legal spouse(s), children (blood and adopted) and blood relatives. In a breakthrough Court Case, the Constitutional Court handed down its ruling stating that surviving life partners can inherit from their deceased partner’s intestate estate. The definitions and other sections in the Act are unconstitutional and outdated. Chief Justice Mogoeng Mogoeng expanded on his finding saying that “The sections are to be read as including surviving partners of a permanent life partnership terminated by the death of one intestate partner where they had undertaken reciprocal duties of support.” He continued by saying: “Permanent life partnerships were a ‘legitimate family structure and deserving of respect and entitled to legal protection’ ”. The Constitutional Court further ordered that the Maintenance of Surviving Spouses Act 27 of 1990 must also be amended to include persons in a permanent life partnership.
Divorce
If spouses wish to terminate their marriage, it must be dissolved through an Order of Court and the Department of Home Affairs needs to update their records. If the spouses are not in disagreement about the separation, a settlement agreement can be reached between the spouses, it is made an Order of Court, which is a quicker way to separate and to save on legal costs.
If no settlement can be reached between the parties, their marital regime will determine what they will get out of the marriage: the joint estate split into equal shares, an accrual claim, or walking out with everything in your name at the time of divorce.
Mention should be made to life partnerships as well. If life partners decide to terminate their relationship, there is no formality for them to go through to terminate the relationship. If a cohabitation agreement is signed between the partners, the parties must set out what they wish to claim from each other in the event of the termination of the partnership.
Starting a new relationship can be fun and exciting, and it is important to make sure you have planned competently for your future with your partner or spouse, to prevent any surprises from jumping out in the future.
Lizelle Chapman – Senior Associate
VanderMerwe and Robertson Attorneys
