Theme 7:Religious Marriage and Domestic Partnerships Cases

Question 1

Daniels v Campbell

Answer 1

The Constitutional Court held that the Maintenance of Surviving Spouses Act and the Intestate Succession
Act also applied to Muslim Marriages.

Question 2

Moosa NO v Minister of Justice and Correctional Services

Answer 2

1) The Constitutional Court held that in terms of section 2C(1)
of the Wills Act, ‘surviving spouse’ must be read to include every husband and wife of a monogamous and polygynous Muslim marriage solemnized under Islamic
law.

Question 3

Langemaat v Minister of Safety and Security

Answer 3

1) Parties to a same-sex union, which has existed for
years in a common home, must surely owe a duty of support, in all senses, to each other

Question 3

Volks v Robinson

Answer 3

1) The court held that the term “spouse” could not include opposite-sex permanent life partners due to the choice argument.
2) Because they had the choice to get married but didn’t they could not benefit from the entitlements of marriage

Question 4

Gory v Kolver

Answer 4

1) In interpreting the term “spouse” the court found that it included same-sex partners who had undertaken reciprocal duties of support.
2) This was because they did not at the time have the choice
to get married.
3) They do now have that choice under the Civil Union Act and thus the decision may prove different were it to come before
a court again.

Question 5

Laubscher NO v Duplan and Another

Answer 5

1) Ruled to simply confirm the position that same-sex couples could inherit intestate

Question 6

Bwanya v The Master

Answer 6

1) Rejection of the Choice Argument
2) The judgment points out that there is “genuine concern for vulnerable women who cannot parry despite the
fact that they wish to and who become victims of cohabitation relationships.
3) Thus, the argument for the “choice to marry” was rejected and this lead to the decision in Volks v Robinson being
overturned.