To marry or not to marry? – Is it still an important issue in the modern society we live in?

22 July 2016 ,  Corné Nunns 621

Over the past two decades (since the Constitution came into existence) the law with regards to marriage, family, inheritance and other matrimonial aspects have developed at a rapid pace. One of the most profound developments was the implementation of the Civil Union Act which (since November 2006) makes provision for persons of the same sex to legally marry each other by entering into a civil union or marriage. 

However, just before this legislation came into being, the Constitutional Court decided that persons of the same sex and who are in a permanent cohabitation relationship (but who are not legally married as there were no legislation in place to allow therefore at that point in time) are entitled to inherit from each other in terms of the law of intestacy, i.e. where the deceased did not leave a valid will. Even now, after the implementation of the Civil Union Act persons who are of the same sex and live together as “life partners” can inherit from each other intestate regardless of the fact that they have not entered into a valid civil union or marriage even though there is no limitation or restriction on them doing so.

This now raises the question whether persons of the opposite sex and who are in a permanent cohabitation relationship are also entitled to inherit from each other intestate? The answer is no. Furthermore, such persons will also not be entitled to institute a claim against the deceased estate of one of the partners in terms of the Maintenance of Surviving Spouses Act. The Constitutional Court in Volks v Robinson decided that the same matrimonial rights and duties cannot be given to relationships where there were no restrictions or limitations on the partners to enter into marriage but they chose not to do so. 

However, certain other legislation including the Income Tax Act, Estate Duty Act, Transfer Duty Act and the Pension Funds Act extends the term “spouse" to, apart from the traditional meaning of the term, also include persons of the same or opposite sex who are in a permanent cohabitation relationship. This can have some considerable tax advantages.

It is however important that if you find yourself in a permanent cohabitation relationship (and are not married) to consult with a professional advisor for your holistic estate and testamentary planning as well as to make provision for the terms of such relationship with regards to the accumulation of assets during the existence of the relationship and the division thereof upon the termination of the relationship.

Tags: Marriage
Share: