Marilyn 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.”
My husband has a baby out of wedlock. We are married in COP.He is giving the girlfriend money monthly. Should my husband die will I be entitled to support the girlfriend en the baby?
She could make a claim against his estate for maintenance of the child. She could also make a claim against his retirement fund. The best option would be for him to take out a separate life policy that pays to the child and make that clear in his will and to the trustees of the retirement fund
I think everyone is missing the point of the article. The mistress can’t sue nor has any rights what so ever because this man was still married to the surviving spouse, his wife at the time of death. The mistress gets nothing cause they weren’t bound by marriage. If the mistress can claim paternity either the birth certificate would have to have the fathers signature on it or DNA test would need to prove he was the father to the child and results comeback stating that this is the father’s child then the child would be only entitled to 100k. That’s it. Just because you had a child together or lived together doesn’t make you entitled to anything, only his wife is entitled to his assets and estate.
what is going to be interesting is the change to interstate law that will recognise life partners as a spouse. The courts will have to look at whether this has an equal claim to someone who is legally married but been separated for a long time.
Pension funds do recognise children from outside the marriage – especially if the father was providing financial support
Can i ask what happens in a situation where the two a divorced and the decree of divorce said the assets needed to be shared equally but that didn’t happen and the husband died but the husband had other children so is it possible to challenge the the decree of divorce for their father because they’re afraid to loose the access to their father house which was suppose to be sold after the divorce
If the divorce was finalised, then only the assets that were legally belonging to the father can be distributed to the children. It would depend if he died with a will or without. without a will then the courts would follow the intestate rules which would include all children. This will be complicated and I suspect the house would have to be sold, the portion belonging to the ex-wife would be paid out and the remaining half belonging to him would be distributed among the children
Does section 4q apply where the deceased and his partner lived as husband and wife for 30 years, but the deceased was still married. The deceased left nothing to the spouse in his will.
I think SARS will look at the legal marriage, but it is worth making a request/appeal to SARS. New legislation that is going to be passed soon will resolve these issues as it recognizes life partners when it comes to inheritance.
I have a 5 year old child with a man who is married in civil marriage, we are still dating, he paid lobola for me while married. Shall we separate, what will me and my baby get? He works for government. And I am unemployed. He provides for me and our child.
You should try register the relationship with home affairs if lobola has been paid. If you separate you would have to prove that you were traditionally married. If he passed away, his child with you would qualify for some of the pension benefit
My fiance has a Last Will and Testament that leaves his late sisters children (one who is 10 years and the other who is 23 years) and his father and bother a total of 80% of his estate, with my minor child with him only receiving 20%. This 20% will not be enough to maintain our minor child who is 12 months until he is able to work for himself. What are my child’s rights in terms of getting an increased share (beyond 20%) of the estate should my fiance die given that my minor child has more needs due to his age and what is being left to him is not enough?
If he has a pension, the trustees are not governed by his will but by financial dependance. In that case your child would be provided for. You can also contest a will – the courts can over-rule if there is a young child involved. However that is time and money. I would strongly suggest you speak to your partner and request that if he is not providing for the child in his will to at least have life cover that covers the child’s education for example. It does not sound like he is being a very good father to his child.
I have 2 minor kids with a man married in community of property. He died and his will say that the family trust is bequeathed as beneficiary and his adult daughters are bequest of residue.
If his estate is put under a family trust. Will I still be entitled to claim maintenance for my 2 minor kids as they are not provided for in the Will?
You have a lot of rights in this case. Firstly you are married COP so he could not bequeath his entire estate to the trust as half belongs to you. Secondly any retirement funds would have to go to you and the children if you are financial dependents. I would suggest you do get legal advice.
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.
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.
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.
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
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?
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.
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.
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
I am in a relationship with a married man married out of community of property with his wife and they are not dating , we have been together for 7 years and now we have a one baby. He recently built a house for me and the baby while he still has his matrimonial house , this new house is also in his name not mine , should he die one day will his wife have a right to kick me out of the house or it is my house since I was built for me from beginning to the end I was there ? What rights do I have here eg will the cars and house be taken away? . My man has payed lobola for me although he is still married we are a family and have been fo years without the wife being in the picture.
The best thing he can do for you and your child is to put a will in place. In his will he can leave the house to you and funds to support you and the child. I have asked a fiduciary expert to understand what would happen if he died without a will. The child would definitely have a claim against the estate and any retirement funds, but I will find out what legal rights you have.
I received this full analysis from Sanlam Trust:
The man is married out of community of property. By virtue of him being married out of community of property means that his estates remains separate from the estate of his wife. This means whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates. So the man can grow his asset and own whatever properties and allow access to whoever he sees fit. The tricky part is when he dies. Should the man die intestate, without a Will then the following will apply, 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.
The laws of intestate succession 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; and
• 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.
It is advisable that the man drafts a Will. In this scenario he will be exercise his freedom of testation and he can protect the client by bequeathing the house to her.
I note that the client states that she is married in terms of customary law. Please note that 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). So there might be legality challenges with the second marriage (customary marriage). 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.