However, on February 6 2023, the man died in a car accident. After the burial, the court was called upon to determine if the deceased’s first marriage to NRM was valid, meeting all the requirements of a customary marriage, in terms of the Recognition of Customary Marriages Act.
According to FN, the deceased’s obituary had reflected her as the surviving spouse. She also said that despite NRM attending the funeral, she had played no role. FN said she was the one whom the deceased's family had granted widow status, and who also occupied the seat of being a chief mourner, while NRM watched from a distance.
The court should consider those as reasons enough to recognise her as the only lawful wife of the deceased, FN argued.
It was also argued that NRM did not consent to FN being married by the deceased.
However, FN argued that according to Swati and Bapedi customs, which were observed in lobola negotiations, NRM's consent was not required for her to conclude a valid customary marriage with the deceased.
She further argued that the deceased’s marriage to NRM was irretrievably broken down. She said this was evident from that the deceased moved out of the home he shared with NRM. She also said that at the time of his death, he was paying for the maintenance of the child he had with NRM, through a court order.
In the alternative, she submitted that the deceased’s two marriages should all be recognised as customary marriages entered in terms of the Recognition of Customary Marriages Act.
In his judgment, however, Mpumalanga High Court's deputy judge president Takalani Ratshibvumo found that the argument was without merit. “The fact that a marriage could be irretrievably broken down only entitles the parties to that marriage to seek a divorce decree, which can only be granted by a court. A breakdown of the marriage does not automatically dissolve a customary marriage,” he said.
“Her plight is that she married deceased without the NRM's consent. Further submission to the effect that the obituary of the deceased read at his funeral mentioned the FN as the only wife or that she was the chief mourner who was allowed to sit on a mattress by the family is irrelevant and a non-starter.
“The fact that the deceased and FN lived together as husband and wife does not take the argument any further. Living like a married couple does not validate the second marriage given the deceased having not divorced the applicant or acquired her consent to marry another wife.”
Ratshibvumo, therefore, ruled: “It is declared that NRM was married to the deceased in terms of customary law. It is declared that the marriage between FN and the deceased is invalid and unlawful.”
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Why court denied customary wife benefits from late husband's estate
Couple lived as husband and wife and had a child, but the marriage was not registered with home affairs
Image: 123RF/Evgenyi Lastochkin
A woman has lost her claim to the estate of her late ‘husband’ after the court ruled that her role as chief mourner at his funeral did not validate their customary marriage. This is especially since his first wife had not given consent, as required by law.
According to the Mpumalanga High Court judge, living like a married couple does not validate the second marriage since the deceased had not divorced his first wife nor acquired her consent to marry another wife.
It was revealed at the court that the applicant, NRM, and the deceased were married by customary law in 2017. The deceased sent emissaries to NRM's family to negotiate lobola for their marriage (the first marriage).
The negotiations were conducted in terms of Bapedi (the deceased) and Swati (NRM) customs. Lobola was finally agreed between the two families at R12,000 in cash and 13 cattle.
The cash part of lobola was paid, leaving the cattle to be delivered later. The marriage was celebrated customarily, and NRM was handed over to the deceased to be his wife. The couple lived together as husband and wife and a child was born out of the marriage. The marriage was, however, not registered with the department of home affairs until the passing of the deceased.
In April 2019, two years after marrying the applicant, the deceased met FN. He then moved out of the home he shared with NRM to stay with FN, in her house. On November 23 2020, the deceased and FN signed into a civil marriage at the department of home affairs (the second marriage).
The following year in December, the deceased sent emissaries FN's family to negotiate lobola on his behalf. After the negotiations, lobola was set at R20,000, which was paid on the day and the deceased’s second marriage was celebrated as both a civil and customary union.
However, on February 6 2023, the man died in a car accident. After the burial, the court was called upon to determine if the deceased’s first marriage to NRM was valid, meeting all the requirements of a customary marriage, in terms of the Recognition of Customary Marriages Act.
According to FN, the deceased’s obituary had reflected her as the surviving spouse. She also said that despite NRM attending the funeral, she had played no role. FN said she was the one whom the deceased's family had granted widow status, and who also occupied the seat of being a chief mourner, while NRM watched from a distance.
The court should consider those as reasons enough to recognise her as the only lawful wife of the deceased, FN argued.
It was also argued that NRM did not consent to FN being married by the deceased.
However, FN argued that according to Swati and Bapedi customs, which were observed in lobola negotiations, NRM's consent was not required for her to conclude a valid customary marriage with the deceased.
She further argued that the deceased’s marriage to NRM was irretrievably broken down. She said this was evident from that the deceased moved out of the home he shared with NRM. She also said that at the time of his death, he was paying for the maintenance of the child he had with NRM, through a court order.
In the alternative, she submitted that the deceased’s two marriages should all be recognised as customary marriages entered in terms of the Recognition of Customary Marriages Act.
In his judgment, however, Mpumalanga High Court's deputy judge president Takalani Ratshibvumo found that the argument was without merit. “The fact that a marriage could be irretrievably broken down only entitles the parties to that marriage to seek a divorce decree, which can only be granted by a court. A breakdown of the marriage does not automatically dissolve a customary marriage,” he said.
“Her plight is that she married deceased without the NRM's consent. Further submission to the effect that the obituary of the deceased read at his funeral mentioned the FN as the only wife or that she was the chief mourner who was allowed to sit on a mattress by the family is irrelevant and a non-starter.
“The fact that the deceased and FN lived together as husband and wife does not take the argument any further. Living like a married couple does not validate the second marriage given the deceased having not divorced the applicant or acquired her consent to marry another wife.”
Ratshibvumo, therefore, ruled: “It is declared that NRM was married to the deceased in terms of customary law. It is declared that the marriage between FN and the deceased is invalid and unlawful.”
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