n South African Law Journal - The constitutional family in the law of succession

Volume 126, Issue 3
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



This contribution traces the development of the so-called 'constitutional family' in the law of succession. The first part of the article provides a synopsis of, first, recent Constitutional Court judgments as well as a number of High Court judgments on the application of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 outside the confines of the traditional nuclear family as constituted through a valid civil marriage under the Marriage Act 25 of 1961 and, secondly, an overview of recent legislative developments regarding the aforementioned two statutes. This exposition of judicial and legislative developments necessitates an extraction of the constitutional underpinnings of these developments, which is attempted in the second part of the article. The focus in the third and final parts of the article falls, first, on a tabulation of current and future legal developments on the spousal concept for purposes of the two abovementioned statutes and, secondly, on investigating the implications of current and future legal developments regarding the constitutional family for certain provisions of the Intestate Succession Act.

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