Intestate Succession and Surviving Heterosexual Life Partners: Using the Jurist’s ‘Laboratory’ to Resolve the Ostensible Impasse That Exists After Volks v Robinson
Authors Bradley Smith
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 284 – 315
While South African family lawyers and the public at large wait patiently for the legislature to enact legislation to regulate the recognition and legal consequences of life (or domestic) partnerships, the prevailing legal position differentiates between surviving same-sex and opposite-sex life partners by permitting only the former group to qualify as the intestate heirs of their respective deceased partners. The positive law appears to find itself in a deadlocked position in this respect due to the precedent-setting judgment of the Constitutional Court in the matter of Volks NO v Robinson and the ‘choice argument’ (or ‘objective model of choice’) endorsed by the majority judgment in that case. This article attempts to find a hypothetical solution to break this deadlock. This may be accomplished by litigation that is argued on the basis of the surviving heterosexual life partner’s right not to be unfairly discriminated against on the intersecting grounds of marital status and sexual orientation. Embracing such an argument would enable a future court to circumvent the ratio in Volks while at the same time according due deference to the doctrine of precedent. It would also allow the court to evaluate existing scholarly contributions in a new light. In particular, the views of those scholars who hypothesise that homophobia and/or affirmative action measures should justify the retention of the status quo, is challenged. It will instead be argued that the prevailing position not only unfairly discriminates against, but also violates the right to dignity of, surviving heterosexual life partners who satisfy the criteria laid down for surviving same-sex life partners in order to qualify as one another’s mutual intestate heirs in terms of the judgment in Gory v Kolver NO. The judicial extension of the right to inherit on intestacy to such life partners, in accordance with the ‘parallel accommodation’ hypothesis is therefore constitutionally mandated.