Woman loses estate battle to husband’s ‘secret’ wife of 45 years

Katlego Sekhu

In this week’s Legal Matters segment on Point of View with Phemelo Motene, legal expert Nthabiseng Dubazana unpacked a complex customary marriage case in which a woman who believed she had been lawfully married for six years lost her claim to her late partner’s estate.

The deceased had never legally divorced his first wife, whom he had married through customary law more than 40 years ago.

As the process of winding up the deceased’s estate began, his first wife came forward.

According to Dubazana, the woman who had been married to the deceased for six years was completely unaware of his earlier marriage.

However, proof of lobola negotiations from four decades prior was presented in court, confirming the first wife as the lawful spouse and rightful person to administer the estate.

“The current wife stands on no leg. So essentially, she was helping the first wife to acquire,” said Dubazana.

She went on to explain that, according to a ruling by the Mthatha High Court, a marriage entered into under customary law can only be dissolved by a formal decree of divorce. “The fact that you’ve spent time apart doesn’t mean you’re divorced,” she clarified.

As a result, the woman who believed she was the spouse is entitled to nothing from the estate, including the house and pension funds.

Dubazana noted that the only possible route for the woman to receive anything would be through pension fund provisions, specifically under section 37(c) and (d).

“Even if she is listed as a beneficiary, investigations will still be conducted to determine who else depended on the deceased during his lifetime,” she explained.

She also highlighted that marriage in Community of Property, the spouse is prioritised, even ahead of the children.

“When he dies, 50 percent of his pension is allocated to the surviving spouse. Of the remaining 50 percent, she receives either a child’s share or a spousal share, whichever is greater.”

Unless the deceased had a valid will, Dubazana added, the estate becomes significantly more complicated to settle.

“Even with a will, debts must be settled first. If the debts consume all liquid assets, other assets must be sold to cover them. The children might not benefit at all which is why it’s important to sort out your estate before you pass on,” she emphasised.

For the full discussion, listen to the podcast.