The Constitutional Court in 2004, in the matter of Volks NO v Robinson and Others, held that a permanent life partnership is not a marriage for purposes of the Maintenance of Surviving Spouses Act, and that it is, for purposes of this Act, justified to differentiate between married couples and permanent life partners. The Pension Funds Adjudicator (“the Adjudicator”) was up till now, in reliance on the Volks judgment, of the view that it is allowable to differentiate between spouses in a marriage and partners in a permanent life partnership for purposes of spouses’ pensions.
The Constitutional Court has however in December 2021, in the matter of Bwanya v Master of the High Court, Cape Town and Others, held that the Volks judgment was wrongly decided, and that a marriage for purposes of the Maintenance of Surviving Spouses Act includes a permanent life partnership in which the partners undertook reciprocal duties of support. The court further said that permanent life partnerships are deserving of legal protection.
The Adjudicator’s office discusses the Bwanya judgment in its quarterly newsletter, and comes to the following conclusion:
“Since section 37C(1) of the Pension Funds Act, 1956 provides that spouses’ pensions must be dealt with in accordance with the registered rules of the relevant fund, it will be necessary for funds to assess their rules and determine whether it accords with the Constitutional Court judgment in Bwanya. The FSCA too, must be mindful of the Bwanya judgment when registering rules pertaining to spouse’s pensions and funds may well find themselves receiving rejections or queries relating to same if it does not accord with the Constitutional Court’s judgment. It appears, as well, that it can no longer be held that a differentiation in the rules between spouses in a marriage and partners in a permanent life partnership is justifiable. As set out by the Adjudicator in Maritz (discussed above), these are issues which affect funding of benefits based on actuarial calculations and assumptions and funds would be well advised to draw this recent judgment to the attention of their actuaries.