The short answer
Because you did not agree to the second marriage, it is void. You can contest the will.
The whole question
I married my husband under customary law in 2010. We have three children together. I found out that he had married a second wife under civil law without consulting me.
He left everything to her in his will. Is there anything that I can do?
The long answer
Under the Recognition of Customary Marriages Act of 1988 (as amended), all customary marriages are in community of property unless the couple entered into an antenuptial contract. Community of property means that the husband and wife own all assets and property equally, as well as all debts. This is called a joint estate.
The only way a customary marriage can be dissolved is by a divorce order from a court under the Divorce Act 70 of 1979 (as amended). If you and your deceased husband did not divorce, then you are still married and the community of property still applies.
Your husband could have married another wife under customary law if you had agreed, and if the court had agreed on the way the property was to be divided among the wives. But he could not legally marry another woman under civil law if he was already married under customary law and had not divorced his first wife. That means that legally, his marriage to the second wife is invalid – it does not exist legally.
In a community of property marriage, when one of the spouses dies, the joint estate is dissolved. This involves the executor of the estate first settling all the debts that are equally shared between the spouses. If he died without a will, you and your children would inherit the balance.
In this situation where he has made a will leaving everything to the second wife, you still have a right to 50% of the estate after all the debts have been settled. His second wife could inherit the other 50%, in terms of being a beneficiary of his will. Even though his second marriage was not legal, he still had the right to leave 50% of his estate to another beneficiary.
You would need to contest his will on the grounds of your deceased husband having no right to leave all his assets to another beneficiary when he was still legally married to you in community of property, and thus you are entitled to 50% of the joint estate after all debts have been settled.
If your customary marriage was registered, there should be no problem proving that you were married and therefore entitled to 50% of the joint estate. If it was not registered, it could be a problem to prove that your marriage existed if, for example, the second wife disputes that you were married. You would then need to provide proof that you did marry, like photographs of the ceremonies and so on.
You will need a lawyer to assist you with this. You can apply to Legal Aid which is a means-tested organisation that must help you if you cannot afford a lawyer.
These are their contact details:
Toll-free helpline for legal advice: 0800 110 110 (Monday to Thursday 8am – 4pm and Fridays 8am – 1pm)
Please-Call-Me number: 079 835 7179
Wishing you the best,
Answered on Oct. 13, 2021, 2:03 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.