By Shaun Bergover
This is the 7th article in our series for 2024 on “Customary Law and Life Partnerships: implications on death”
Customary Unions
Marriages in terms of customary law can raise a number of issues in relation to the law of
succession – in other words, what must happen on death when the couple is married in
terms of customary law. The main reason is that customary marriages are usually not civil
unions that follow the traditional marriage structure. The validity of the customary union
therefore comes into question, and it is necessary to consider and decide this prior to the
deceased estate being wound up. There are many forms of customary unions in South
Africa as there are various cultures and religions in the country. These unions are all
protected by the Recognition of Customary Marriages Act 120 of 1998 (“the Act”).
Requirements for a valid customary union
In order for a union to be a valid customary union, it must comply with the requirements
stipulated in the Act. Once these requirements are met, a certificate of registration is issued.
Some of the requirements are that:
1. The prospective spouses must be over the age of 18 years.
2. They must have consented to being married under customary law, and
3. The marriage must have been negotiated and entered into in accordance with
customary traditions.
After the formal requirements of the wedding and marriage have been met, an application for
a registration certificate can be made at the Department of Home Affairs.
Primogeniture Rule
Primogeniture refers to the previous customary practice, now declared unconstitutional, in
terms of which only the male line in a family was entitled to inherit. The practice limited the
rights of the wives and daughters in the estate of the deceased, and only recognized the
potential male heirs. The wife of the deceased was often the one most disadvantaged, as
her home would be inherited by her son/s or brother-in-law.
The Constitution, with its principles based on equality, made it possible to change this rule
and the resultant unfair discrimination against women and children. The result is that women
and daughters may now inherit even if there are male children. The usual rules of intestate succession will thus be applicable in these situations, i.e., the spouse and children are all eligible to inherit, although the actual inheritance will be based on the value of the estate.
Permanent Life Partnerships
A life partnership refers to a couple living together in a romantic relationship, without being
married (whether in terms of customary law, the Marriages Act or the Civil Union Act). In
short, life partners do not automatically have the right to share in each other’s property
during the subsistence of the life partnership or upon its termination (including death).
Accordingly, life partners do not automatically inherit from each other in terms of intestate
succession. They may inherit only if they have specifically been included in the Will of the
deceased life partner, or if they can prove their partnership (discussed below). In South
Africa there is no legislation governing life partnerships.
If there is no Will, then partners in a permanent relationship who live together as a married
couple and have reciprocal duties of support, may still be able to inherit and claim
maintenance from a deceased estate in the same way that a spouse in a marriage can. In
order to do so, however, they will need to prove reciprocal duties of support, and essentially
prove that their partnership resembled a marriage. This can, however, be a very
burdensome process, and may involve an application being made to the nearest High Court.
Recent court judgments have made the following references to what may be considered as
reciprocal duties:
Loyalty, sympathy, love, affection, and concern
Physical care
Financial support
Assisting with running of the common home
Support in business or employment
Same-sex partnerships
In 2006, The Civil Unions Act of 17 was passed allowing same-sex partners to get married.
When two people register their union as a permanent same-sex partnership in accordance
with the Civil Unions Act, they are regarded as spouses for the purposes of intestate
succession. The important element is to register the union. If same-sex partners do not
register their union, however, they may still inherit if they can demonstrate that a reciprocal duty of support existed in their partnership (the same law therefore applies as in the case of life partnerships discussed above). The partners to same-sex unions may also claim maintenance against their deceased
partner’s estate in terms of the Maintenance of Surviving Spouses Act.
Requirements for a valid life partnership
The best protection for life partners who do not get married, whether heterosexual or same-
sex partnerships, is to enter into a life partnership agreement, which has to be signed by
both partners before a notary public (similar to a commissioner of oaths). This agreement will
be binding between the partners, and includes aspects of a divorce settlement and a Will to
cover instances of separation by the partners or death of one of the partners.
This agreement should include, among other things:
Description of the partners.
Details of assets and liabilities – who owns what, and whether the parties will share in each other’s assets upon death or separation.
Details regulating financial matters during the partnership.
Children and issues of primary care upon death or separation.
If partners do not enter into a partnership agreement, then in order to be eligible to inherit, a
partner will have to prove that reciprocal duties of care and support existed during the partnership.
It is still quite onerous for unmarried partners to ‘prove’ their partnership even though our
courts have ruled that they may inherit. For greater legal protection, therefore, it is advisable
to get the same-sex or opposite-sex partnership registered if the partners do not get married.
Shaun Bergover
Attorney at the Rhodes University Law Clinic
