Lawfully married vs lovers

Lawfully married vs lovers. Picture: File

Lawfully married vs lovers. Picture: File

Published Apr 8, 2024


A wife, a lover in a permanent relationship with a deceased and a white wedding, were all issues the Gauteng High Court, Johannesburg was confronted with when it had to determine whether the permanent partner’s estate could inherit a slice of the deceased’s estate.

The deceased whose estate formed the subject of the application died in Switzerland, where his partner took care of him until the end. She, however, also died shortly afterwards.

The application was brought by the executrix (the applicant) of the estate of the deceased woman, only identified as Ms Sindile.

The applicant asked the court to declare that Sindile be regarded as the permanent surviving life partner of the other deceased, only identified as Ndumiso. When he died before Sindile, he did not leave a will and thus died intestate. They had one child together.

The court was also asked for an order that the estate of Sindile be permitted to claim a portion of inheritance - as determined by the court - from Ndumiso’s estate, despite the fact that he had a legally wedded wife at the time of his death.

The issue before the court was whether Sindile and Ndumiso’s relationship qualified as life partners and whether the estate of Sindile is entitled to have a claim from the estate of Ndumiso.

Since the second respondent (the lawful wife) was married to Ndumiso in community of property since 2003 she is entitled to half of his share by virtue of their marriage. They also had three children.

The applicant’s case was that the estate of Sindile should be permitted to inherit in terms of the law from the estate of Ndumiso. It was argued that this is because Sindile’s permanent life partnership with Ndumiso was akin to a marriage and they had reciprocal duties of support towards each other.

She had met Ndumiso during February 2010 and one child was born from their union. Sindile therefore qualifies as Ndumiso’s permanent life partner and enjoys benefits in terms of the law, the court was told.

According to the applicant it did not matter whether Ndumiso was married at the time of his death.

His lawful wife opposed the application and said that Ndumiso was married to her and that whoever had stayed with him as his wife was in an adulterous relationship with him.

She denied that Sindile had a personal relationship with Ndumiso to the extent that she would know “the desires of his heart.”

The wife, however, admitted that she and Ndumiso were no longer staying together. She admitted that Ndumiso and Sindile had one child, but denied that it was a permanent life partnership and involved reciprocal duties of support towards one another.

The court was told that Ndumiso and Sindile celebrated their “white wedding” in 2017. They had attempted to register their marriage at Home Affairs in Pietermaritzburg but were advised that they could not register their marriage due to the fact that Ndumiso was still married.

Despite the rejection to register their marriage, they remained committed to their relationship and resided together to such an extent that family members, friends and Ndumiso’s work colleagues considered them to be a married couple.

Where Ndumiso was employed, his colleagues knew Sindile as his wife. When he became terminally ill and was diagnosed with diabetes, Ndumiso’s employers booked a flight ticket for Sindile to go and see him in Switzerland.

They remained together even until Ndumiso’s death and Sindile took care of him whilst he was on his deathbed.

The applicant contended that Sindile was not only Ndumiso’s permanent life partner, but she was considered his wife. The applicant did not dispute that the lawful wife was entitled to half of his estate, but she said the estate of the now also deceased Sindile should also get a share.

The court concluded that Sindile was a permanent surviving life partner of Ndumiso but since Ndumiso was married at the time of his death, Sindile cannot be regarded as his spouse. Her estate could therefore not lodge a claim against the estate of Ndumiso on the basis that she was a life partner.

Section 8 of the Civil Union Act prohibits such a partnership, the court said in dismissing the application.

Pretoria News

[email protected]