Family: Woman’s life partner argument falls short

A woman’s application for a declaration that her now-deceased partner was a life partner – which would mean she could benefit from his estate – failed with the Gauteng High Court (Pretoria) finding that, although they were lovers, he had been married to his now-former wife until shortly before he died. The Mercury reports that the applicant initially lodged an application to declare that her relationship with her partner constituted a customary marriage. She later withdrew the application. She then asked for an order declaring that she and Refilwe Kekana were in a permanent life partnership undertaking reciprocal duties of support. In court papers she said she and the deceased, who met in November 2017, had moved in together in March 2018. Kekana’s family had initiated the lobolo process.

In May 2018, he and his sister had travelled to meet her family and had paid R19 000 lobolo, with an outstanding amount of R11 000. In September 2018, there was a welcoming ceremony at the Kekana’s family home in Soshanguve. Most of the deceased’s family had attended the gathering, except for a daughter of the deceased, who refused to accept their relationship. After the lobolo had been paid, they had regarded themselves as husband and wife. Shortly afterwards, they bought a home.

The court was told they had also transferred money into each other’s accounts to mutually support each other. In January 2021, the deceased died intestate. The applicant said they had been life partners. The deceased’s daughter denied that. She had regarded the applicant as her father’s girlfriend. She said her mother had been married to her father when the lobolo negotiations were concluded, reports The Mercury. Thus, the applicant could not claim to be the deceased’s surviving spouse.

The applicant referred to a Constitutional Court judgment extending the definition of a surviving spouse to include the surviving partner of a permanent life partnership. But Acting Judge N Mazibuko said the question was whether the applicant and the deceased were competent to enter into a marriage or a permanent life partnership. Kekana and his now-former wife had married in July 1994 and divorced only in 2020 – 10 months before his death. The judge said that when the applicant and the deceased promised ‘until death do us part’ when they moved in together, the deceased had not been competent to conclude a marriage or familial relationship, as he was married. Thus, the applicant was not a surviving spouse.