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'Second marriage' holds up benefits

PHOTO: Jackie Clausen
PHOTO: Jackie Clausen

A family cannot access their inheritance because of a woman who claims to have been in a polygamous marriage with their late father .

The Mashego family of KaBhokweni, Nelspruit, accuse the SAPS and Government Employees Pension Fund (GEPF) of entertaining the woman's claims even though her alleged marriage to their father was not legal.

Sibonisiwe Mashego, 57, said after her husband's death, they were shocked when a woman the family knows nothing about tried to claim benefits from his estate as a customary wife.

Mashego said she married the late Isaiah Mashego in 1988 in terms of the Marriages Act of 1961. Her husband had worked as a policeman for 30 years and they were still married when he died in March 2011 .

Mashego said she discovered that there was another claim on the deceased estate three months after her husband's death when she inquired why her payout was being delayed.

Mashego said her late husband had not mentioned that he had a second wife, nor did he ask her permission to marry a second wife. She said she was also unaware that he had paid lobolo as alleged by the woman who claims to be his second wife.

"Besides, in terms of our marriage, Isaiah was prevented from marrying any woman, whether by customary or polygamous marriage unless we divorced," Mashego said.

The mother of two said the human resources personnel at SAPS have a certified copy of their civil marriage, but still insisted on getting the "second wife" to submit her lobolo letter, which she has failed to produce in the last four years.

Mashego said when she asked the GEPF for an explanation as to why they wanted to entertain the other woman's claim, she was told the "second wife" was also nominated as a beneficiary on the nomination list her husband submitted before his death.

She said her late husband did not register his second marriage with the Department of Home Affairs.

Section 7 (6) of the Recognition of Customary Marriage Act says a husband who wishes to enter into a second marriage must apply to a court for approval of a written contract.

The husband, all his wives and witnesses from the newly-weds must also be present when the polygamous marriage is registered. This was not the case with the Mashegos.

In 2013 the Constitutional Court also ruled that for a polygamous marriage to be legal, the first wife must give permission before the second marriage can be entered into. It further said failure to obtain the first wife's consent would be a breach of constitutional principles of equality and the inherent dignity of the person who has to give consent.

Mashego said it was concerning that the SAPS and GEPF tried to protect someone who allegedly masqueraded as a polygamous wife at her expense.

One of Mashego's daughters has appealed to the fund to release her share of the deceased estate and that of her sister's while the "second wife" tries to prove the legitimacy of her marriage.

However, GEPF spokesperson Ofentse Seleka said: "The fact that the name of the second wife appears legitimately on the nomination form suffices for her to be considered as a beneficiary."

He said GEPF has not yet received Mashego's claim documents from SAPS.

Seleka said they would only be in a position to determine who is entitled to what once they receive the claim documents.

With regard to the list of nominees, GEPF is likely to consider a nomination form as signed by the member, provided it lists all the legally recognised beneficiaries and/or dependants of the deceased, Seleka said. In other words, the GEPF is likely to make payouts in accordance with the nomination form.

He said the "second wife" may be considered if she is included in the nomination form and it is clear that she was a dependent of the deceased and there was no fraud involved when her details were included in the nomination form.

However, if it is true that the member was a party to a civil marriage with his first wife, they were not divorced and he did not include her (first wife) in the list of nominees, then the GEPF board will be obliged to award her a spousal pension.

"The law prohibits a person who is married to another under the Marriages Act to enter into a customary marriage or another civil marriage while the original civil marriage still exists except where the second marriage is between the same parties," said Seleka.

He said it must also be noted that the second marriage was in essence not legal where the member was a party to an existing civil marriage at the time of his death.

However, if the second woman was depending on the member for her support, then there was no need to produce a lobolo letter to be considered in the distribution of the lump sum, Seleka said.

Lawful wife is entitled to benefits

Did you know that if you are married in terms of civil rites and nominate a "second wife" to inherit part of your deceased estate, her claim might not succeed but will unnecessarily delay payments to your family?

Mashego's plight is not unique. There are other widows and spouses who may find themselves in the same situation. Consumer Line sought legal opinion from Gillian Lowndes, a partner at Lowndes Dlamini & Associates. Lowndes said a party to a civil marriage cannot enter into a customary marriage without first annulling the civil marriage.

She said the customary union entered into by a person already married in terms of the Marriages Act 25 of 1961 is not legally binding. She said even if the "customary wife" were to find proof of payment of lobolo and that all other rites of a customary union were fulfilled the marriage would still be void.

Lowndes said the GEPF Act recognises a dependant as anyone whom a member is legally liable to maintain, any person who at the time of the member's or pensioner's death was in fact dependent on the member or pensioner or a person who was the spouse of the member or pensioner (including customary marriages). The GEPF Act also deals with the payment of gratuities (lump sums) to beneficiaries "designated" or nominated by members of the fund. The board, however, retains a discretion as to whether or not to pay the gratuity in question.

Lowndes said in a situation where there was the competing right of a lawful spouse and/or children that would be prejudiced by a nomination of the "second wife", the board may well not exercise the discretion to pay the nominated person.

It is clear from the Act that a lawful spouse is entitled to the benefits flowing from the GEPF on the death of the member. However, a life partner and customary wife can also receive benefits from the fund, provided the member registers them as such with the fund prior to death, said Lowndes.

The GEPF Act says a member who is already a party to a customary marriage may not register a life partner with the fund.

 

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