For Immediate Release: 01 December 2016
Yesterday, 30 November 2016, in the Constitutional Court, judgment was handed down in Rasmus Laubscher v Eric Duplan and Another, a case dealing with the continued recognition of intestate inheritance rights for same-sex permanent partners in light of the enactment of the Civil Union Act 17 of 2006, which legalises and regulates same-sex marriage.
The LRC represented the Commission for Gender Equality as amicus curiae.
The applicant (Mr Laubscher) is the brother of the late Cornelius Daniël Laubscher (deceased) and the executor of the deceased’s estate. The respondent (Mr Duplan) had been in a same-sex permanent partnership with the deceased from 2003 until the deceased passed away in 2015. They had undertaken reciprocal duties of support.
However, Mr Duplan and the deceased never solemnised and registered their same-sex partnership under the Civil Union Act and the deceased passed away without leaving a will.
Mr Laubscher’s brother claimed that he is the lawful heir to the estate. However, the court a quo found that Mr Duplan was the only intestate heir of the deceased estate. Mr Laubscher’s brother appealed the court a quo’s finding in the Constitutional Court.
At the Constitutional Court, the Commission for Gender Equality, represented by the LRC, made submissions supporting Mr Duplan’s argument.
The Commission stated that there are no sound policy reasons to undo the protections provided by a previous Constitutional Court judgment relied upon by Mr Duplan in his arguments. In Gory v Kolver, it was found that the definition of the word “spouse” in the Intestate Succession Act includes, “partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”.
Mr Laubscher contended that Gory had been repealed by the Civil Union Act and only same-sex partners in a registered civil union can inherit under the Act.
The Constitutional upheld the arguments of Mr Duplan, finding that he was entitled to inherit from the estate of Mr Laubscher.
In handing down its judgment, the majority held that the Gory order remains an interim measure for same-sex partnerships until such time as the legislature chooses to specifically amend it. The majority did not deal with the question of whether the benefit should be extended to include opposite-sex partners and held that the legislature is competent to adopt either a generous or a more restrictive approach to its recognition of permanent relationships.
The majority also adopted a contextual approach, which requires the court to afford as much protection as possible to same-sex partners who have chosen not to marry.
The Commission had submitted that the Gory order better gives effect to the spirit, purport and objects of the Bill of Rights because it reflects the norm that the Constitutional Court will be slow to prescribe or prefer one form of family relationship over another. The Commission also highlighted changing social tendencies and statistics which reflect that the prevalence of permanent life partners is increasingly common.
These submissions were made in light of a case which the majority did not see the need to delve into, that of Volks NO v Robinson and Others. The case dealt with the right of opposite-sex partners to claim maintenance from a deceased estate, with the Constitutional Court finding that Mrs Robinson, who had entered into a permanent life partnership with the deceased, did not fall within the definition of a “spouse” in terms of the Maintenance of Surviving Spouses Act.
However, in a separate, concurring judgment, Froneman J deals with the Volks judgment head on and in relation to the case at hand, in order to consider whether benefits should be afforded to permanent life partners in which the partners have undertaken reciprocal duties of support.
He refers to the Bill of Rights which prohibits unfair discrimination on the ground of marital status. He further states that Volks reflected views of its time; however it is not inclusive enough in the present social context.
He states that it does not logically follow that the removal of the obstacles to marry will also entail protection of permanent same-sex life partners who do not marry.
In conclusion, he supports that majority judgment in that Duplan can inherit. He further argues that the Gory order supports the reasoning that the existence of a factual duty of support (as opposed to a legal duty, i.e. via the duties that arise from the solemnisation of the relationship through marriage) may arise in other kinds of permanent relationships, outside of marriage.