The short answer
If he died without a will, the Intestate Succession Act applies. You may need legal help.
The whole question
Dear Athalie
My deceased father was married in community of property but they were separated for 23 years. During that period, he married another woman in a customary marriage. When my father died, the first wife came back to claim his estates.
I am my father's only child. Neither of his wives is my biological mother. I don't even know the first wife. What can my father's second wife and I do to resolve this matter?
The long answer
First, even though your father was separated from his wife for 23 years, unless he actually got divorced, he was still married in community of property to that wife at his death. That means that his wife is entitled to half of his estate.
If your father died without leaving a will, the other half of the estate would be distributed according to the Intestate Succession Act. That Act distributes the estate in the following order:
Spouse/s (wives)
Descendants (children)
This would mean that, as there are only two of you, the estate would be divided between the two of you equally, which would be the best solution. The problem here is that if your father was already married to the wife that he separated from under the Marriage Act, he could not be married again under the Customary Marriages Act as this would not be legally recognised.
On the other hand, after a law called The Reform of the Customary Law of Succession and Regulation of Related Matters was passed in 2009, there were widespread recommendations that inheritance rights should be extended to individuals supported by the deceased while alive, whether they were legally spouses or descendants or not. This would perhaps describe the position of your father’s customary wife.
That law meant that female members could inherit property whereas previously only males were seen as the rightful inheritors of property in terms of customary law. All customary marriages are deemed to be automatically in community of property. In addition, the Master of the High Court is supposed to protect vulnerable groups like women and children from being exploited as a result of a family agreement in terms of customary law.
But as this could be a complicated situation to resolve fairly, perhaps you and the customary wife should seek legal help and advice.
You could contact a non-profit organisation devoted to women’s rights called The Women’s Legal Centre:
Cape Town Office: 021 424 5660.
Or you could contact The Legal Resources Centre:
Email: info@lrc.org.za
Johannesburg: 011 038 9709
Cape Town: 021 879 2398
Makhanda: 046 622 9230
Wishing you the best,
Athalie
Answered on Jan. 26, 2021, 2 p.m.
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