The following sections of the Civil Unions bill appear to compete with the rights of customary spouses under the Traditional customary law. Nevertheless, the government appears to be trying to pass this law without going through the House of Traditional Leaders.
Philip Rosenthal
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MEMORANDUM ON THE OBJECTS OF THE CIVIL UNION BILL, 2006
5.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.
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Application for a maintenance order after separation
40. (1) A court may, after the separation of unregistered partners upon application of one or both of them, make an order which is just and equitable in respect of the payment of maintenance by one unregistered partner to the other for a specified period.
(2) When deciding whether to order the payment of maintenance and the amount and nature of such maintenance, the court must have regard to the age of the unregistered partners, the duration of the unregistered domestic partnership and the standard of living of the unregistered partners prior to separation, as well as the following matters—
(a) the ability of the applicant to support himself or herself adequately in view of him or her having custody of a minor child of the domestic partnership;
(b) the respective contributions of each unregistered partner to the domestic partnership;
(c) the existing and prospective means of each unregistered partner;
(d) the respective earning capacities, future financial needs and obligations of each unregistered partner;
(e) the relevant circumstances of another unregistered domestic partnership or customary marriage of one or both unregistered partners, where applicable,
in so far as they are connected to the existence and circumstances of the unregistered domestic partnership, and any other factor which in the opinion of the court should be taken into account.
Application for a maintenance order after death of unregistered partner
41. (1) A surviving unregistered partner may after the death of the other unregistered partner, bring an application to a court for an order for the provision of his or her reasonable maintenance needs from the estate of the deceased until his or her death, remarriage or registration of another registered domestic partnership, in so far as he or she is not able to provide therefore from his or her own means and earnings.
(2) The surviving unregistered partner will not, in respect of a claim for maintenance, have a right of recourse against any person to whom money or property has been paid, delivered or transferred in terms of section 34(11) or 35(12) of the Administration of Estates Act, or pursuant to an instruction of the Master in terms of section 18(3) or 25(1)(a)(ii) of that Act.
(3) The provisions of the Administration of Estates Act apply with the changes required by the context to a claim for maintenance of a surviving unregistered partner, subject to the following—
(a) the claim for maintenance of the surviving unregistered partner must have the same order of preference in respect of other claims against the estate of the deceased as a claim for maintenance of a dependent child of the deceased has or would have against the estate if there were such a claim;
(b) in the event of competing claims of the surviving unregistered partner and that of a dependent child of the deceased the court must make an order that it regards just and equitable with reference to all the relevant circumstances of the unregistered domestic partnership;
(c) in the event of competing claims of an unregistered partner and that of a surviving customary spouse, the court must make an order that it regards just and equitable with reference to the existence and circumstances of multiple relationships between the deceased and an unregistered partner, and between the deceased and a customary spouse;
(d) in the event of a conflict between the interests of the surviving unregistered partner in his or her capacity as claimant against the estate of the deceased and the interests in his or her capacity as guardian of a minor dependent child of the domestic partnership, the court must make an order that it regards just and equitable with reference to all the relevant circumstances of the unregistered domestic partnership; and
(e) the executor of the estate of a deceased spouse has the power to enter into an agreement with the surviving unregistered partner and the heirs and legatees having an interest in the agreement, including the creation of a trust, and in terms of the agreement to transfer assets of the deceased estate, or a right in the assets, to the surviving unregistered partner, or to impose an obligation on an heir or legatee, in settlement of the claim of the surviving unregistered partner or part thereof.
Determination of reasonable maintenance needs of surviving unregistered partner
42. When determining the reasonable maintenance needs of the surviving unregistered partner, the court must consider the—
(a) amount in the estate of the deceased available for distribution to heirs and legatees;
(b) existing and expected means, earning capacity, financial needs and obligations of the surviving unregistered partner;
(c) standard of living of the surviving unregistered partner during the subsistence of the unregistered domestic partnership and his or her age at the death of the deceased;
(d) existence and circumstances of multiple relationships between the deceased and an unregistered partner, and between the deceased and a customary spouse; and
(e) any other factor that it regards relevant.
Intestate succession
43. (1) Where an unregistered partner dies intestate, his or her surviving unregistered partner may bring an application to a court, subject to subsections (2) and (3), for an order that he or she may inherit the intestate estate.
(2) Where the deceased is survived by an unregistered partner as well as a descendant, such unregistered partner inherits a child's share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Cabinet member responsible for the administration of Justice by notice in the Gazette, whichever is the greater, as provided for in the Intestate Succession Act.
(3) In the event of a dispute between a surviving unregistered partner and the customary spouse of a deceased partner regarding the benefits to be awarded, a court may, upon an application by either the unregistered partner or the customary spouse, make an order that it regards just and equitable with reference to all the relevant circumstances of both relationships.
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