David Thomson, Senior Legal Advisor at Sanlam Trust, says that anyone who gets involved with a married person is in a vulnerable position if that person dies. “If the deceased was legally married under the Marriage Act or Civil Union Act, then the people entitled to the estate are his spouse and children. The ‘mistress’ has very few rights and will have to prove dependency to claim from a retirement fund, should this be available.”
But what if they’re separated from their spouse?
Unfortunately for the mistress in this situation, being separated from their spouse for however long a period of time does not equate to a legal divorce.
What if the mistress and her partner have been living together for a long time?
Well, the point above still stands and also those who live together for a long period of time without getting married are not legally recognised as spouses. “There are three types of legally recognised marriages in South Africa – marriage by the Marriage Act, Civil Union Act, and Customary Marriage Act. If you’re living with a married man who is not officially divorced, this does not entitle you to any of his estate. Even the house you’re living in could be taken from you in the event of his death, unless it’s an asset in your name,” says Thomson.
What if they were married in a customary marriage ceremony?
According to the Home Affairs website, “customary marriage is one that is ‘negotiated, celebrated or concluded according to any of the systems of indigenous African customary law which exist in South Africa’. This does not include marriages concluded in accordance with Hindu, Muslim or other religious rites.”
With this kind of marriage, both spouses and the other wives have to agree to the marriage and the ceremonies have to be conducted according to strict rituals in order to be recognised by the law. The woman’s family should have received ilobolo, she should have wedding photographs, videos or community witnesses to prove it in the eyes of the law. If she can’t, she might be a mistress rather than a wife.
Thomson advises getting the customary marriage backed up by registering the marriage with Home Affairs. If a customary marriage is deemed lawful, then all spouses should be entitled to equal portions of the estate, but this can be complicated by children. As the guardian of minor dependents, one spouse might have a stronger claim than another.
Also, if a man is already married under the Marriage Act, he can’t marry someone under the Customary Marriage Act as this won’t be lawfully recognised.
What if the mistress was named in the married person’s will?
If the married person is married in community of property, then their spouse is automatically entitled to half their estate. Even if the mistress is mentioned in the will, the inheritance is not lawfully hers.
If the person is not married in community of property, they can leave their estate to whoever they wish, but the court will prioritise the children’s claim if the deceased individual has any. If the mistress puts in a claim in competition with the wife and children, then the court will generally recognise her claim last if at all, according to Thomson.
The deceased’s estate has to make sure that their children will be looked after and that their school fees, etc. will be covered. Their claim therefore relies on the scale of their dependency – this includes dependent children over the age of 18. The same applies to his wife who has a right to claim under the Maintenance of Surviving Spouses Act. In addition, her age and potential to generate her own income is taken into account.
So does this mean that the mistress will never win?
“If she can prove her dependency, she may be entitled to claim from the deceased’s pension or retirement fund. Alternatively, if he gave her assets (like a car in her name) during their time together, then these are deemed donations that cannot usually be taken back, unless there are extenuating circumstances. For example, where a man gave his mistress assets out of malice towards his family and to their financial prejudice, the court will likely rule in favour of the children. A mistress should also note that ‘gifts’ do not indicate support, and that this will not be sufficient to back up her dependency claim,” says Thomson.