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Can a mistress inherit from a married man’s estate?

Aug 3, 2017

mistressMarilyn Monroe, Marla Maples, Michelle McGee, and Kristen Stewart – all successful women in their own right, with one controversial commonality – they were mistresses to married men. The term ‘mistress’ is an inflammatory one – a name as complicated as its legal ramifications. In a world where the meaning of romantic partnerships is potentially evolving, what is the ‘other woman’ entitled to in the event of her significant other’s death?

David Thomson, Senior Legal Advisor at Sanlam Trust, says that anyone who embarks on a relationship with a married person is in a vulnerable position when the individual 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.”

Marriage Myths

Thomson believes some circulating myths about marriage are misleading. He makes it clear that a long separation doesn’t equate to a legal divorce, and that individuals who live together for a significant period of time are not legally recognised as married. “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.”

Customary marriages

Customary marriages are different as they allow for multiple spouses – provided that the other wives consent to the new marriage. However, Thomson warns that customary marriage ceremonies have to be conducted according to strict rituals in order to be legally recognised. The woman’s family should have received ilobolo, and 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 regarded as 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.

It’s also wise to note that someone married by the Marriage Act or Civil Union Act cannot then get married under the Customary Marriage Act. So if a man is already married under the Marriage Act, he can’t marry his mistress under the Customary Marriage Act and have this union lawfully recognised.

Marriage in community of property

If a mistress is cohabiting with a married man, she will do well to find out whether or not he was married in community of property. If this is the case, his wife is automatically entitled to half of his estate – so even if the man names the mistress in his will, this inheritance is not lawfully hers.

Marriage out of community of property

If a man is married out of community of property, he can leave his estate to whomever he chooses but the court will prioritise his children’s claim. If a mistress lodges a claim in competition with the wife and, particularly, the children, the court will generally recognise her claim last – if at all. The man’s estate first and foremost has to ensure that his children maintain the lifestyle they’re accustomed to, while also covering their school or university fees, medical aid expenses, etc. 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 are taken into account.

So does the mistress ever win?

Thomson stresses the fact that each case is dealt with individually, but reiterates that the mistress is always vulnerable in the event of the death of someone with whom she was in a relationship. “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.”

8 Comments

  1. If A man was not married when we got together and i lived with him until I had back surgery . I had to stay with my sister , but i lived with him for 4 years . but after my back surgery . he brought him and I a mobile home . We i lived their for 8 months until he told me he got married ,but the home was in our name. sent the Clovid 10 hit he died and hid his wife , now can you tell me what i am in tiled too.

    Reply
    • If the home was in both names you are entitled to your portion of the home. It will be difficult because technically his wife would have a claim to his half of the home under COP. You could continue to live in it – wait and see if she comes knocking… You could challenge and make a claim, but you would need a lawyer.

      Reply
  2. My husband and I are separated but not divorced, because he doesn’t want to divorce me. So now he paid lobola to his mistress without my consent, and we are married in community of property.

    Reply
    • Goodness. As far as I am aware he does not have to agree to the divorce, you can divorce him. I strongly suggest you get legal advice and resolve as soon as possible. Remember any debts he takes are also your responsibility under Community of Property

      Reply
  3. My mum and dad have been separated for just over 5 years now. Mom lives in cpr and dad in dbn in our family home. Of recently his moved his girlfriend into our family home without notifying my mother. The reason my mum and dad separated in the first place is because my dad had an affair with my mother inlaw “my husband’s mother”. My mom and dad have done nothing about the divorce this far, its only since my dad has moved his gf into the house his applied for a divorce.
    My parents are married in community of property, can my mum get that lady moved out her house even tho ky father wants her there?

    Reply
    • You would need to speak to a lawyer but I think the only thing your mother can do is insist on the house being sold or evoking a divorce and getting her share of the house paid to her.

      Reply
  4. My estranged husband lives with his mistress. We live and got married in Illinois. If he specified that a Life Insurance policy go to her, but the payments for is came out of joint monies, can she claim that policy as hers? We have a Trust and wills.

    Reply
    • If he is the policy holder he can select the beneficiary. Sounds like you need to split your finances so you are not paying for it

      Reply

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Maya Fisher-French author of Money Questions Answered

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