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Press Release: Con­sti­tu­tional Court rules that same-sex part­ners be allowed to inherit intes­tate

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Mr Laub­scher con­tended that Gory had been repealed by the Civil Union Act and only same-sex part­ners in a reg­is­tered civil union can inherit under the Act.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. 







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