SAY­ING I DO … NOT

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

Du­plan, had been in a per­ma­nent same-sex life part­ner­ship with Cor­nelius Daniel Loub­ser from 2003 un­til Loub­ser died in­tes­tate in 2015. The ap­pli­cant lodged a claim with the ex­ecu­tor of the de­ceased’s es­tate to in­herit the de­ceased’s en­tire in­tes­tate es­tate as a con­se­quence of their same­sex life part­ner­ship. The ex­ecu­tor, the brother of the de­ceased and the only sur­viv­ing child of the de­ceased’s par­ents, main­tained that the ap­pli­cant was not a spouse within the mean­ing of the In­tes­tate Suc­ces­sion Act and only a spouse in a part­ner­ship which is solem­nised and reg­is­tered as a civil union is en­ti­tled to in­herit in terms of the In­tes­tate Suc­ces­sion Act. The crisp is­sue, as Judge AJ Muller put it, was whether the ap­pli­cant could in­herit in­tes­tate from the de­ceased.

In his judg­ment, the judge first re­viewed the history in SA of the recog­ni­tion of same sex mar­riages, the Civil Union Act, the Gory case and the spe­cific pro­vi­sions to be read into the In­tes­tate Suc­ces­sion Act. He then dis­cussed the dis­tinc­tion be­tween same-sex part­ner­ships which are solem­nised and reg­is­tered and those which are not. He noted that the for­mer is recog­nised by the law and the

Pic­ture: iS­TOCK

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