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LONDI ASKS:
I am in a relationship with a married man who is married out of community of property. He is not with his wife, and we have been together for seven years and have a baby.
He recently built a house for me and the baby. He still has his matrimonial house, and this new house is in his name, not mine. Should he die one day, will his wife have the right to kick me out of the house, or it is my house since it was built for me?
What rights do I have here – will the cars and house be taken away? My partner has paid lobola for me although he is still married, we are a family and have been for years without the wife being in the picture.
MOREMADI MABULE, FIDUCIARY EXPERT AT SANLAM TRUST REPLIES:
The man is married out of community of property, which means his estate remains separate from the estate of his wife.
This means that whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates.
The man can grow his assets and own whatever properties and allow access to whoever he sees fit.
The tricky part is when he dies.
READ: Personal Finance | A will to protect your family
Should the man die intestate – without a will – then the wife might inherit everything, depending on the value of the estate.
The children will have a maintenance claim against the estate.
The laws of intestate succession will apply; they are as follows:
Where the deceased is survived by one spouse, as well as by a descendant, the surviving spouse inherits whichever is the greater of:
• A child’s share;
• An amount fixed from time to time by the minister of justice and constitutional development (presently R250 000).
The descendant or descendants inherit the residue (if any) of the intestate estate.
To calculate a child’s share, the estate is divided into as many children’s shares, as stated above, plus an additional share, which the surviving spouse takes.
In this case, customary law does not apply.
A man cannot marry two wives if he is married in terms of civil marriage in South Africa except for certain instances under customary marriages (both marriages are in terms of customary law).
READ: Personal Finance | Life partner will have same right as spouse
Polygamous marriages are not allowed under the Marriage Act and, therefore, a man may not enter into marriage with a second partner until the existing marriage is dissolved.
The validity of the customary marriage is questionable.
