Can my ex-wife for whom I only paid half lobola for before separating claim from my estate even though I have made a will that excludes her?

The long answer

Before we get to the question of the will, there is the question of whether you were actually married or not to your ex-wife under customary law. 

What the Recognition of Customary Marriages Act of 1998 says must happen in order to be legally married is:

• The couple must have agreed to marry;

• Both should be 18 years;

• The marriage process should be conducted in accordance with cultural traditions.

As Acting Judge Thulare remarked in a 2019 high court case reported by de Rebus, “Marriage is not constituted by a single event. A series of negotiations, festivities and rituals officiate it into a marriage.”

But there is still much confusion about precisely what cultural traditions make a customary marriage legally valid because different communities have different traditions, and there have been a number of court cases about it. The courts say that customary law is a living and evolving thing, and so courts have to go into the particular circumstances of each marriage to decide if there was a valid marriage or not. The courts have also found that although lobola negotiations between the two families are a necessary part of the process of a valid customary marriage, the fact that lobola was not fully paid is not a sufficient reason to say the marriage does not exist (editor's emphasis).

The Go Legal website says that if you are not sure whether you were married or not, you can approach the High Court for a declaratory order. The court would have to take all the facts into account before deciding to grant such an order. And you would need a lawyer to approach the High Court, which is not cheap (I have listed the contact details for pro bono lawyers at the end of my response).

If you were married under customary law, your present marriage under civil law would not be valid. You could only marry under civil law if you were divorced from your customary law wife. And you could only divorce your customary law wife if you have a marriage certificate. You could apply to Home Affairs for a marriage certificate, which you would need in order to get divorced. The courts will not grant a divorce order without a marriage certificate. Home Affairs would want to see the lobola letter and any other proofs of the marriage to issue the certificate. 

A customary marriage can only be dissolved on the grounds of the irretrievable breakdown of the relationship through a divorce order granted by the court.

And if you were married under customary law, that marriage would be in community of property. Since the Constitutional Court judgment of 30 November 2019, any customary marriage after the Recognition Act came into force in 2000 is held to be in community of property unless the couple has taken out an antenuptial contract. That means that if you divorce, the joint estate (all the assets and all the debts) is divided between the couple equally.

It also means that even if you have a will in which your ex does not appear, she could still inherit half of the joint estate, in terms of community of property. You could leave the other half to the person/s of your choice. 

So, you need to establish if you were in fact married under customary law. If you were, your civil marriage is not legal. You would need to get a marriage certificate from Home Affairs so that you could get divorced from your customary law wife, after which you could marry your civil law wife legally. Without a divorce from your customary law wife, your civil law wife would not inherit your joint estate, even with a will. 

So perhaps you should get some legal advice as to how to proceed.

You could contact Legal Aid for assistance. It is a means-tested organisation that must assist people who cannot afford a lawyer. You can contact them here:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

Wishing you the best,
Athalie