Two court cases women need to know about

TWO court rulings in the past eight months have overturned existing practices regarding who gets what when a relationship or marriage ends, and they apply especially to women. If you’re in the type of relationship described in either of the cases detailed below, you need to take note: it appears the law is slowly turning in your favour.

1. You’re unmarried, but in a long-term heterosexual relationship

If you are one of the 3.5 million South Africans who are living with their partners but not legally married, you may now have a claim on your partner’s estate if he/she dies. By a quirk of the law, until December last year, the legal definition of “spouse” applied to unmarried same-sex partners, but not to unmarried heterosexual partners. But the so-called “Bwanya ruling” changed that.

Jane Bwanya was about to marry multimillionaire Anthony Ruch when Ruch died. The pair were cohabiting and had plans to start a business together. They’d been dating for two years and wanted to start a family. Ruch left everything to his mother in his will, which he never updated to include Bwanya. His mother died before him and he had no heirs – effectively he died intestate (which means dying without leaving a will).

The Intestate Succession Act says that if you die without a will, your estate will be divided among your surviving spouse (including a same-sex partner and a spouse by customary or religious marriage) and your children. If you die without leaving a spouse or children, your parents and siblings stand to inherit.

Bwanya contested being excluded under the Act, arguing that if it had been a same-sex relationship, she would have had an automatic claim to Ruch’s estate. The High Court ruled in favour of Bwanya and referred the matter to the Constitutional Court. The Con Court agreed and declared the definition of “spouse” unconstitutional.

The Act still needs to be changed, but this is expected to happen, although it raises many questions, such as what criteria determine such a relationship.

David Thomson, senior legal adviser at Sanlam Trust, says: “These changes could be quite alarming for people who are just living together. Suddenly, things get a lot more serious. Many may start asking what they need to do and whether they want the other person to inherit.”

He says the best thing to do, if you’re in such a relationship, is to draw up a cohabitation agreement, outlining your financial rights and responsibilities, with the help of a financial planner, and to regularly update your individual or joint wills, so there’s no uncertainty around each person’s wishes.

2. You’re married out of community of property without accrual

Until 1984, you could be married either in community of property (your estates were joined together into a joint estate) or out of community of property (your estates remained completely separate). In 1984 the marriage laws were changed to include the accrual system for couples married out of community of property. This meant that the couple’s estates remained separate, but any assets they accrued during the marriage would be shared. However, couples could still choose to marry out of community of property without accrual, meaning nothing was shared.

A court case in May has resulted in a relook at how fair the law is for spouses married without accrual. The Gauteng High Court, Pretoria, declared the applicable section of the Divorce Act unconstitutional in that it did not allow for a court to make a “redistribution order”.

The estranged wife of a wealthy wine farmer turned to the court to have the section of the Divorce Act declared unconstitutional. Her lawyers argued that the court needed to consider whether the wife had contributed to the growth of her husband’s estate during the marriage (even through means such as looking after the household), and the extent of that contribution.

The wife had been forced into signing an antenuptial contract to be married out of community of property, excluding accrual. She said she had been young, naive and in love with her husband and had been pressured to sign the contract by his family, especially his father.

She argued that, for almost 30 years of marriage, she had significantly contributed to the maintenance and expansion of her husband’s estate and assets, while looking after the children and working on the farm.

Shani van Niekerk of Adams & Adams Attorneys said this was a historic judgment, especially for women who earlier stood to receive nothing if they were married out of community of property.

Van Niekerk said anyone divorcing who felt they had contributed to a marriage – whether directly or indirectly – could now apply for a fair share of the assets accumulated by the couple during the marriage.

This applied especially to women who took care of the children and household, without working and earning an income.