WATCH: Will my husband’s mistress benefit from his policies?

While marriage is a widely-accepted and celebrated ‘next step’ for couples who wish to build a family, the legal implications of this institution are hardly discussed among family members, until it is too late and one of the spouses feels cheated out of their possessions. Legal experts have taken upon themselves to educate people about marriage contracts and estate policies, though this information often gets lost in a world where information comes and goes, and changes, at a rapid pace.

The Citizen sat down with attorney Yosef Shishler of Yosef Shishler Attorneys and Mediators to clarify some of the questions relating to extra-marital partners and policies.

Q: I met my husband 13 years ago. We have two sons – a 10-year-old and a two-year-old. We got married (customary marriage) three years ago. He works for a delivery company in Johannesburg. Before we got married, he listed his mother, younger brother and our first child as beneficiaries on his work policies. He did not change his beneficiaries after we got married. He does not know I am aware of this.

I am also worried because he has had a mistress over the past few years, even though he claims to have ended things with her. In case of his death or divorce, how does this affect me? Will the mistress get anything?

In African families, the topic of marriage is often had among parents and their children, with girls being ‘prepared’ from a young age to be ‘proper’ makotis when they come of age.

Marriage is an arrangement that affects us all regardless of race, culture and beliefs, but before the law, we are all equal.

While things may have been ‘easier’ back in the days when men went out to work while the women took care of the household without the legal implications of such an arrangement, these days, however, things have become a bit more complicated.

As a result, contracts come into play to help couples decide how they wish their union to end when push comes to shove. According to Shishler, an antenuptial contract is not a measure of the couple’s commitment to their marriage, contrary to popular belief.

“A marriage contract is similar to taking out life insurance. Things happen. You’ve got to protect yourself. It’s not necessarily something you want to do, but it’s something you have to do to protect yourself and everybody else. We’re not saying it’s due to fail, but we’re saying let’s follow due process, let’s protect ourselves in the event that it does happen. It doesn’t only relate to what happens if I get divorced, it also has a bearing on what happens if I die,” he said.

One such contract governs a customary marriage, which was only legally recognised in 1998 through the Recognition of Customary Marriages Act, with the aim of embracing South Africa’s diverse cultures and 11 official languages.

The Act provided a platform for people to get married in terms of customary marriages, subject to certain requirements within their culture.

Parties have to be over the age of 18, consent to the marriage and the marriage has to be concluded and celebrated in terms of their custom, which varies from each culture. After fulfilling all the requirements, couples still have the opportunity to register their marriage.

“All marriages should be registered but if not registered, it doesn’t make that marriage void. The marriage is still enforceable,” said Shishler.

In July 2019, government passed a new bill that called for equal rights to marital property for women who entered into monogamous and polygamous customary marriages before 1998.

The amendment of the Customary Marriages Act reads in part: “The proprietary consequences of a customary marriage in which a person is a spouse in more than one customary marriage, and which was entered into before the commencement of this Act, [continue to be governed by customary law] are that the spouses in such a marriage have joint and equal ownership and other rights; and rights of management and control over marital property.

“The rights contemplated above must be exercised in respect of all house property, by the husband and wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.”

Now coming to this woman’s case, considering the type of marriage she entered into, in nominating your beneficiaries, you’ve got two options: either you nominate people, or you can nominate your estate, said Shishler.

“If you nominate your estate, the money gets paid into your estate and forms part of the will. If you nominate a person as your beneficiary, it bypasses the will and goes according to your nomination.

“If this person has nominated A, B, C people, that is who they nominated and there is not going to be any claim for any other person because they nominated these people as beneficiaries and they’re entitled to nominate these people as beneficiaries. That’s why it’s often encouraged that people continuously check their beneficiaries. Often you find that the person does not even know they’ve been nominated and it all ends up in the estate. The problem the payout going into the estate is that it gets tied up in the process of winding up the estate, and that can take quite a lot of time.”

Unfortunately, the wife cannot change the policy.

“What is the policy? Sometimes the underwriters have their own rules and regulations where spouses are involved, which may make provision for your spouse being entitled to ABC, even if the spouse is not the nominated beneficiary. You’ve got to look at each policy according to what the requirements are and what the rules are of that particular insurance company – same as the pension and provident funds. Often what you’ll see is that some of these provident funds and pension funds make provision that in the event of a death, the spouse gets a certain benefit, which is a separate thing altogether. This is, however, dependant on a case-to-case basis.”

The good news for the wife is that an extramarital partner cannot claim from the couple’s estate.

“Off-the-cuff and in terms of the actual marriage law, the extramarital partner does not have any legal right. There is no real contract or anything else that’s binding them together,” said Shishler.

However, the story changes if they are included in their partner’s will.

“When a person writes up a will, they have what is known as Freedom of Testation, which means that in South Africa, a person can leave his or her assets to whoever he/she likes in his/her will, provided it’s not illegal or against public policy.”

Yosef Shishler is a married father of three who was admitted as an attorney in 2008. He started his own firm under the name Yosef Shishler Attorneys, specialising in family law.

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