On 30 November 2006 South Africa became the fifth nation to allow gay or lesbian couples to marry by promulgating the Civil Unions Act, 17 of 2006, which now entitles same-sex couples to conclude civil marriages or unions in South Africa.
The Civil Unions Act defines a “civil union” as meaning “the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others”.
The legal consequences of a civil union in terms of the Civil Unions Act are stipulated as being the same as those of a marriage contemplated in the Marriage Act apply.
With the exception of the Marriage Act and the Customary Marriages Act, any reference in any other law, including the common law, to a husband, wife or spouse in any other law, includes a civil union partner, and any reference to a marriage includes a civil union.
Prior to the promulgation of the Civil Unions Act, on 23 November 2006, the Constitutional Court handed down its judgment in Gory v Kolver and extended the definition of a “spouse” as contained in the Intestate Succession Act, 81 of 1987, to include same-sex partners, even if the partnership was not formalised by marriage. When someone dies and does not leave a valid will‚ the Intestate Succession Act applies and divides a deceased’s estate between family members and spouses.
In effect the decision in Gory v Kolver amended the Intestate Succession Act before the Civil Unions Act was promulgated.
Ten years later, on 29 November 2016, the Constitutional Court handed down another judgment in Laubscher N.O. v Duplan and Another. In this judgment the court held that the promulgation of the Civil Unions Act did not have the effect of amending the provisions of the Intestate Succession Act. In this case the Constitutional Court had to determine whether a surviving same sex partner with whom the deceased lived in a permanent same-sex partnership‚ was entitled to inherit from the intestate estate of the deceased. At the time of the deceased’s death the same-sex couple had not concluded or formalised any civil union and the deceased did not leave a will.
In a majority judgment‚ the Constitutional Court ruled that “….same sex partners will continue to enjoy intestate succession rights under Section 1 (1) of Intestate Succession Act‚ as per the Gory order until such time that the Legislature specifically amends the section”.
In conclusion same-sex partners have the right to:
- Legally conclude a marriage or civil union;
- Inherit as a spouse would if their partner does not leave a valid will, even in the event that the same-sex couple had not concluded a marriage or civil union, until new legislation is passed to address the issue.