The constitutional implications of the evolving "family unit" concept in the law of intestate succession

Abstract

The family unit has been continuously developed for the purposes of intestate succession law. Initially, a "family unit" comprised of a couple married in terms of the Mariage Act 25 of 1961 and their biological children. The terms "spouse", "descendant" and "parent" in intestate succession law have been continuously developed to include persons other than married spouses and their biological children. The enactment of the Constitution and the recognition of the rights to equality, human dignity, culture, religion and the best interest of children demanded significant changes to the terms "spouse", "descendant" and "parent" under the Intestate Succession Act 81 of 1987. In terms of the common law, the term "spouse" for the purposes of intestate succession has been developed to include same-sex partners and persons who underwent a sex-change operation. In terms of customary law, the term "spouse" includes spouses who concluded a valid customary law marriage. Additionally, women who concluded seed-raiser agreements and women in woman-to-woman marriages are also included in the intestate succession law term "spouse". Persons who entered into Muslim and Hindu marriages are also included in the term "spouse" for the purposes of intestate succession. Life partners in permanent life-partnerships resembling marriages have also been included in the term "spouse". Currently, under consideration is the Marriage Bill which aims to recognise all marriages, including marriages concluded in terms of the Marriage Act, civil unions concluded in terms of the Civil Union Act, marriages concluded in terms of customary law and marriages concluded in terms of a religion, under one act. If enacted, the Marriage Bill may influence the term "spouse" by recognising persons married in terms of the Marriage Bill under the Intestate Succession Act. Excluded from the term "spouse" is persons in life partnerships where their partner is in a valid marriage or civil union concluded in terms of the Marriage Act 25 of 1961, the Civil Union Act 17 of 2006 and the Recognition of Customary Marriages Act 120 of 1998, and, presumably, partners in polygamous life partnerships. iii The terms "descendant" and "parent" were extended to include unmarried fathers as "parents" and their biological children as their "descendants". Additionally, children adopted in terms of the Children's Act 38 of 2005 and their adoptive parents also qualify as "descendants" and "parents" in terms of the Intestate Succession Act 81 of 1987. Additionally, commissioning parents in surrogacy agreements have also been included as "parents" in terms of intestate succession law, and children born from surrogacy agreements qualify as "descendants". Beneficiaries for artificial insemination are also "parents" in terms of the Intestate Succession Act 81 of 1987, while donors are specifically excluded. Same-sex partners also qualify as "parents" in terms of the Intestate Succession Act 81 of 1987. Persons who acquired parental rights and responsibilities in terms of the Children's Act 38 of 2005 have also been recognised as "parents" for the purposes of intestate succession. Children adopted in terms of customary law ceremonies have also been included in the term "descendant", and their adoptive parents in the term "parent" by the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. Excluded from the terms "descendant" and "parent" are children informally adopted and their parents, who have accepted children, other than their biological children as their own. This study explores the development of the terms "spouse", "descendant" and "parent" in the Intestate Succession Act 81 of 1987 in terms of the common law, customary law, Muslim law and Hind law. This study also examines who is excluded from the terms "spouse", "descendant" and "parent" in the Intestate Succession Act 81 of 1987. Legislation that could provide further development of the terms "spouse", "descendant" and "parent" is also discussed. Additionally, this study provides recommendations for the further development of the terms "spouse", "descendant" and "parent".