The nature of financial protection of an individual in the event of the death of a spouse or life partner with regard to succession, maintenance and pension funds

Abstract

One of the consequences of South Africa's diverse society is, inter alia, that individuals are party to many forms of intimate relationships. The Constitution of the Republic of South Africa, 1996 also supports diversity by confirming in section 9(1) that everyone is equal before the law and has the right to equal protection by and benefit from the law. Based on the strong provisions on legal and social equality, every surviving spouse and life partner should, therefore, enjoy equal protection from a financial perspective when the relationship ends with one partner passing away. The aim of the research was firstly to establish what the most prominent intimate relationships are and what the financial consequences of each type of relationship in the event of the death of a partner are. Secondly, the research examined whether the law does protect an individual from a financial perspective with regard to succession, maintenance and pension fund benefits when a spouse or life partner dies. The conclusion drawn after analysing the different relationships is that there is no consistency when it comes to legal protection as far as the financial affairs of survivors are concerned. Individuals do not all receive the same legal protection when faced with the same life event. For example, opposite sex life partners cannot inherit intestate from one another in terms of the Intestate Succession Act whilst same-sex life partners can. It is also possible for Muslim and Hindu individuals in monogamous as well as Muslim individuals in polygynous religious marriages to inherit intestate, but not for Hindu individuals in polygynous religious marriages. A surviving spouse in a recognised customary marriage can inherit intestate, but the definitions of spouse and descendant are not clear, resulting in uncertainty as to how to calculate the portion that the surviving spouse is entitled to in terms of the Customary Law of Succession Act. Although same-sex life partners can inherit intestate from one another, they are not allowed to claim maintenance in terms of the Maintenance of Surviving Spouse Act. Only Muslim individuals in monogamous religious marriages can rely on the protection of this Act, whilst Muslim individuals in polygynous and Hindi individuals in both monogamous and polygynous religious marriages cannot. The legal journey for South Africans in this area has been eventful over the last few years, but there is nonetheless room for further development to ensure that individuals in the same type of relationship are equally protected by the law in terms of our Constitution.