| Summary: | Recent legislation and case law lead to great uncertainty regarding the scope and meaning of the word "spouse" in terms of South African law. Is only people married in terms of the Marriage Act regarded as "spouses", or does it also include those married in terms of the Recognition of Customary Marriages Act and the Civil Union Act? Another question with regards hereto is what the position of people in a permanent cohabitation relationship (or domestic partnership) is? In order to answer the above questions, this study will determine which persons will qualify as a "spouse" for purposes of estate planning.
People married in terms of the Marriage Act, Recognition of Customary Marriages Act or Civil Union Act are all regarded as "spouses". They are entitled to maintenance after the death of the first dying (in terms of the Maintenance of Surviving Spouses Act) and to inherit from their spouse's estate in terms of the Intestate Succession Act should he or she die without leaving a valid will (see Gory v Kolver with regards to people in a same-sex relationship). These "spouses" also qualify for certain tax exemptions, especially in relation to estate duty, donations tax and capital gains tax.
There are however uncertainty with regards to the recognition of domestic partnerships and whether these partners can be regarded as "spouses"? Are they entitled to inherit from their partner in the absence of a valid will in terms of the Intestate Succession Act and are they able to claim maintenance in terms of the Maintenance of Surviving Spouses Act? Certain tax legislation does however include people in permanent life-relationships within the definition of "spouse". Accordingly, they are also able to claim tax benefits, which are available to married persons. There are however no legislation in force which regulates domestic partnerships. Therefore people in domestic partnerships are not entitled to claim maintenance or to inherit from their partner's intestate estate. The South African law thus require people to act positively by entering into marriage in terms of the Marriage Act, Recognition of Customary Marriages Act or Civil Union Act or by concluding a civil union (in terms of the Civil Union Act) if they want legal recognition for their union. === Thesis (LL.M.)--North-West University, Potchefstroom Campus, 2009.
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