Marriage and cohabitation arrangements lay the foundation for the financial consequences that follow either divorce or death. Recent developments in South African legislation and case law have reshaped important rights and protections, particularly in relation to life partnerships and marriages out of community of property – and understanding these changes is essential to ensuring that your financial planning remains relevant and effective.
Historically, South African law provided limited protections to surviving spouses—and even fewer to unmarried life partners—upon the death of one partner. Prior to 1990, a surviving spouse had no legal claim for maintenance against the deceased spouse’s estate, irrespective of financial need. This changed with the enactment of the Maintenance of Surviving Spouses Act (MSSA) in 1990, which allowed the surviving spouse of a legally recognised marriage to claim maintenance from the deceased estate, provided they were financially unable to support themselves. Maintenance is limited to the period until the survivor’s death or remarriage. In determining reasonable maintenance, the courts consider factors such as the size of the deceased estate, the standard of living during the marriage, and the surviving spouse’s ability to earn an income.
Despite this progress, a significant gap persisted in the legal recognition of cohabiting partners, particularly in heterosexual life partnerships. While the courts had recognised same-sex partners’ rights to claim maintenance and inheritance prior to the legalisation of same-sex marriage, permanent heterosexual life partners had no such protection. This changed with the 2021 Constitutional Court ruling in Bwanya v The Master of the High Court, where the court found that the exclusion of permanent heterosexual life partners from the benefits of the MSSA and the Intestate Succession Act (ISA) was unconstitutional. The court acknowledged that all types of families—including life partnerships—deserve equal legal protection based on the reciprocal duty of support that often exists in these relationships.
Following the Bwanya judgment, Parliament passed the Judicial Matters Amendment Act 15 of 2023, which brought both the MSSA and ISA in line with constitutional principles. As of July 2023, life partners—regardless of gender—who were in a permanent partnership with a proven reciprocal duty of support may now claim maintenance from the deceased estate and may inherit under intestate succession if no valid will exists. However, these rights are not automatic – and the onus remains on the surviving partner to provide evidence that the partnership existed and that a mutual duty of support was present. While this is a positive legal development, proactive planning remains critical.
If you are in a life partnership, it is essential to formalise your arrangement through a written cohabitation agreement. Such an agreement can provide valuable evidence of the relationship’s permanence and can specify your intentions regarding financial responsibilities, ownership of shared assets, and what should happen in the event of separation or death. A valid Will is equally important to ensure that your estate is administered according to your wishes. Despite the expanded rights under the MSSA and ISA, dying intestate (without a valid Will) can still lead to delays, legal disputes, and unintended outcomes. Therefore, even with these legal advancements, drafting a comprehensive Will and formalising your partnership remain crucial components of sound financial planning.
Another significant legal development relates to Section 7(3) of the Divorce Act, which previously allowed for redistribution of assets upon divorce but only in respect of marriages out of community of property concluded before 1 November 1984. Under this provision, a spouse could petition the court for a fair redistribution of assets based on non-financial contributions to the marriage, such as raising children, managing the household, or supporting the economically stronger spouse’s career. However, this relief was not available for marriages concluded after that date or in the event of a spouse’s death, which created inequitable outcomes—particularly for women who had sacrificed careers or earnings for family responsibilities.
This position was challenged in a series of recent Constitutional Court cases, including EB (Born S) v ER (Born B) and KG v Minister of Home Affairs, where the Court found the date-based restriction and exclusion of claims arising from death to be unconstitutional. The Court ruled that limiting redistribution claims based on the date of marriage or the manner in which the marriage ends (divorce versus death) amounts to unfair discrimination. However, the Court suspended the declaration of invalidity for 24 months—until December 2025—to give Parliament time to amend the legislation. As a result, the Divorce Act has not yet been formally amended, and redistribution claims following death remain legally uncertain for the time being.
In the interim, the Constitutional Court’s findings strongly signal the direction of future legal reform, and individuals married out of community of property without accrual—regardless of the date of marriage—may wish to seek legal advice should their relationship dissolve, whether through divorce or death. Once enacted, the changes will allow economically weaker spouses to apply for redistribution of assets in recognition of their indirect contributions to the growth of the marital estate.
For couples who selected an out-of-community marriage regime without accrual—especially where one spouse supported the other’s earning potential through non-financial contributions—this prospective legislative change has major implications. The economically weaker spouse may soon have legal recourse to claim a share of the accumulated assets, but such a claim is not automatic. The claimant will need to provide evidence of their contribution to the household or the other spouse’s career, and how it contributed to the overall financial success of the marriage.
In light of these significant developments, it is vital to engage in proactive financial and estate planning. Whether you are married or cohabiting, your planning documents—including your Will, marriage contract (if applicable), and relationship agreements—should be reviewed to ensure they reflect the current legal landscape. Working with a qualified financial planner or legal advisor can help you protect your financial interests and those of your partner or spouse, while ensuring that your estate plan reflects your wishes and complies with the law.
Ultimately, clarity and proactive planning remain your best defence against unintended financial consequences arising from either divorce or death.
Have a wonderful day.
Sue
