And then Anthony died suddenly of a heart attack, before the marriage could take place. His will had yet to be updated, and it left his estate to his mother who had passed away a few years earlier. Jane petitioned the High Court to grant her the same inheritance and/or maintenance she would have been awarded if the wedding had already happened.

Now, it is often said that “common law marriage” allows for this, but you may be surprised to hear that there’s no such thing in South Africa. Effectively, Jane had no right to inherit.

What is the law? What happened to Jane?

The “Maintenance of Surviving Spouses Act” does exactly what it says – it provides for maintenance of a surviving spouse. So the High Court rejected her claim. Jane approached the Constitutional Court for a ruling. They agreed that the Act needed some updating, and ordered Parliament to rewrite relevant sections to include “life partners” in their scope. In the end, Jane walked away with the Camps Bay guesthouse.

If you are cohabiting outside of marriage, you might think this is wonderful news, and that your partner is now protected should you die intestate. But you’d be wrong!

Why do I need a will for my life-partner?

 Firstly, Parliament is unlikely to reword the Act until mid-2023 at the earliest. Once the new Act comes into force, your grieving partner would have to prove, among other things, that you were in a “permanent life-partnership” with a “mutual agreement of support” and the law doesn’t make that easy. There may well be opposition from your other family members. The whole process can be lengthy, frustrating and tenuous. And ultimately, you have still died “intestate” which means that at best your partner will inherit “a child’s share” of the estate.

The bottom line is that by far the best way to protect your life-partner is with a will. This is the only way to ensure that your estate is distributed as you want it to be. You and your partner need to draw up professional wills, as well as a “cohabitation agreement” that sets out your status, and the undertakings you make to each other in place of a formal marriage certificate.

Talk to us today, and protect your life-partner.