The tax burden of being unmarried: Section 4(q) of the Estate Duty Act 45 of 1955

• Citation: (2022) 33 Stell LR 637
• DOI: https://doi.org/10.47348/SLR/2022/i4a4
• Published date: 28 March 2023
• Pages: 637-656
• Author: Frantz, G.
• Date: 28 March 2023

637

https://doi.org /10.47348/ SLR/2 022/i4 a4

THE TAX BURDEN OF BEING UNMARRIED:

SECTION 4(q) OF THE ESTATE DUTY ACT 45

OF 1955

G Frantz

BA LLB LLM

Lecturer, University of the Witwatersrand

C Fritz

LLB LLM LLD

Associate Professor, University of the Witwatersrand

Abstract

In the matter of Burden v United Kingdom (GC) no 13378/05 ECHR 2008,

two unmarried, childless sisters approached the European Court of Human

Rights on the basis that the inheritance tax concession, which only applied

to married couples and civil partners, constituted discrimination in terms of

Article 14 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms and violated the right to peaceful enjoyment of property

in terms of Article 1 of Protocol 1 to the Convention. The Grand Chamber of

the European Court of Human Rights ruled against the sisters on both counts.

In this contribution, we ask: Would or should a South African court reach the

same conclusion if the Burden matter were to be heard in South Africa today?

These are important questions in the South African context as section 4(q) of the

South African Estate Duty Act 45 of 1955 provides that property that accrues to

the spouse of a deceased is exempt from estate duty. To address these questions,

we consider the constitutional rights of equal protection and benet of the law

and the right not to be arbitrarily deprived of property. Whilst we conclude that

an argument based on the right not to be arbitrarily deprived of property would

be unsuccessful as there is no deprivation of property, we opine that section 4(q)

is contrary to the right to equality. This is due to a misalignment between the

government purpose of section 4(q), to support a family when the breadwinner

dies, and the actual impact thereof. This, in turn, is due to the misalignment

between the current family protection afforded to families and the actual realities

of how families are constructed.

Keyword s: Right to e quality; right not to be arbitrarily deprived of propert y;

marriage supremac y; estate du ty; duty of support

1 Introduction

In the matter of Burden v United Kingdom1 (“Burden”), two unmarried,

childless sisters had lived together for most of their lives. They approached the

1 (GC) no 13378/05 ECHR 2008

(2022) 33 Stell LR 637

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https://doi.org /10.47348/ SLR/2 022/i4 a4

European Court of Human Rights (“ECtHR”) on the basis that the inheritance

tax concession, which only applied to married couples and civil partners,

constituted discrimination in terms of Article 14 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms2 (“ECHR”) and

that this discrimination violated the right to peaceful enjoyment of property in

terms of Article 1 of Protocol 1 to the ECHR3 (“Protocol 1”) The sisters argued

that this concession should be extended to family members living together.

The Grand Chamber of the ECtHR ruled that the matter before it did not

fall within the parameters of the right to peaceful enjoyment of property. In

relation to the discrimination argument, the court ruled against the sisters,

stating that there was no “difference in the treatment of persons in relevantly

similar situations”,4 as

“[t]he very essence of the connection between siblings is consanguinity, whereas one of the dening

characteristics of a marriage or Civil Partnership Act union is that it is forbidden to close family

members. The fact that the applicants have chosen to live together all their adult lives, as do many

married and Civil Partnership Act couples, does not alter this essential difference between the two

types of relationship.”5

The court considered a marriage and a civil partnership, which resembles

a marriage, to be worthy of special treatment, that is, of an inheritance tax

concession to surviving spouses. The court justied the differentiation in the

treatment of blood relatives on the basis that consanguinity creates the bond

which ties them together. However, the majority did not consider the different

treatment of their partnership and that concluded by same-sex partners under the

United Kingdom’s Civil Partnership Act of 2004. Instead, the court held that it

was not necessary to extend this protection to the Burden’s family construction

or to interrogate the nature, impact or dominance of amatonormative6 and

dyadic relationships.7 The majority in the ECtHR further failed to interrogate

the impact of this differentiation between family constructions created through

a scheme of marriage-like protection and those that are not akin to a valid

marriage.

In South Africa, family law is similarly dominated by marriage supremacy

and marriage-centrism.8 Most of the family law protections are viewed

predominantly through the prism of marriage, thereby excluding other

2 (Rom e, 04-11-195 0) European Treat y Series 005, enter ed into force 03-09 -1953

3 (Paris, 20 -03-1952) European Treaty Ser ies 009, entered into fo rce 18-05-1954

4 Burden v The Uni ted Kingdom (GC) no 13378/05 ECHR 2008 para 60

5 Para 62

6 E Brake Minimiz ing Marriage: Marriag e, Morality, and the Law ( 2012) 5 Brake int roduces the concept

“amatorma tivity”, which is a foc us that is placed on m arital and a morous love relations hips while

simultaneo usly undermin ing other forms of ca re

7 MW Yarbrough “Some thing Old, Somet hing New: Historicizin g Same-Sex Mar riage within Ongoing

Struggle s over Africa n Marria ge in South Af rica” (2018) 21 Sexualities 1092 1093-1094 Yarbrough arg ues

that “newer un derstandings [ar e] focused primari ly on the dyadic relation ship between the t wo spouses”

and “have become m ore influentia l over time”, and that these “dya dic understandi ngs of marriage have

drawn on a cir culated ideal of ro mantic love that emp hasises affect ion, intimate commun ication, and

emotional sup port between rom antic partne rs or spouses, as opp osed to the themes of ma terial exchange

and suppor t emphasized by exte nded family under standings”

8 S Mayer i “Mar ital Sup remacy a nd the Constit ution of the No nmarital Family” (2015) 103 CLR 1277

1279 Mayeri refers to “ma rriage supre macy” as the legal p rivileging of mar riage over non-ma rriage, and

marital over n on-marital fam ilies

638 STEL L LR 2022 4

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