Widow battles late husband's children for control of his estate in court, despite marriage before divorce



Published Jun 10, 2024


A woman who got married to her deceased husband while he was still married to his first wife failed to convince the Namibian Supreme Court that her marriage was legal.

The woman approached the Supreme Court after the High Court dismissed her application to have her marriage with the deceased declared putative.

Anastasia Amunyela and the late Phillip Amunyela met in March 1995 while she was pursuing her studies in London.

According to Anastasia, Amunyela told her that he was separated from his previous wife and he left her with their children in their marital home. He said the separation happened before his move to London.

A year later in August 1996, the couple got married while they were still both in London.

Amunyela passed away in Namibia without a will in November 2014. They had one boy during their time as a couple.

Anastasia was subsequently the executrix of Amunyela’s estate.

However, she experienced challenges with the administration of the estate, and appointed a legal representative to assist her with the process.

She was told that the property in Windhoek, which was the major asset in the estate, 50% of it belonged to Amunyela’s children from his previous marriage, and she needed their consent to buy it from them.

She sent them a consent form which provided that they should consent to selling her 50% of the property for the amount of R3.1 million.

Amunyela’s children refused to sign the consent forms. Instead, they had their legal representative write to Anastasia’s legal representative, stating that, in order to consider the sale and grant consent, among other requirements, they wanted copies of letters appointing her as the executrix of the estate, a valuation of the property, and a draft deed of sale.

They further wanted to know whether she and Amunyela remarried after their father divorced with their mother.

According to Anastasia, that’s when she was told by her lawyer that Amunyela actually got divorced three years after their marriage and this rendered their marriage null and void.

In court, Anastasia said she was not aware that Amunyela was still married to his ex-wife when they got married.

To support her argument, she stated that she and Amunyela regarded their marriage to be in community of property and lawful.

She asked the court to declare her marriage legal and be in community of property as she was entitled to Amunyela’s half share of the estate.

She further added that not declaring the marriage putative would prejudice her because she purchased the property in 2001 after renting it for some time from the government, and she was the exclusive owner of the property according to the deed of transfer.

Responding Anastasia’s assertions, Amunyela’s children denied that the marriage between her and their father was legal.

According to them, she knew that their father was not divorced at the time she married him and if she wasn’t, she definently became aware in 2006.

The children argued that in 2006, their mother purchased their father’s share of the marital home. In the paperwork, it was stated that the couple divorced in 1999, and Anastasia initialed each page when she signed as a witness, so she must have seen the year of the divorce in the documents.

In response, she said did not scrutinise the contents of the documents when she was signing and asked the court not to rely on her signature because she did not read the documents.

Furthermore, the children said they found it unlikely that she was not aware of the fact that their father was convicted and sentenced for bigamy in the year 2000.

She had no explanation to how she could not have become aware of his conviction of bigamy.

To strengthen their argument, they said her son’s birth certificate, who is their half brother, indicated that she was not married to Amunyela.

In her defence, she said she had not used the birth certificate before, therefore did not notice the error. She corrected the error after she noticed it and blamed the error on Home Affairs.

The appeal court said whether the mistakes in the birth certificates are attributable to the Home Affairs, it was very unlikely that she had not seen or used her son’s full birth certificate.

It was further held that it was highly unlikely that Amunyela would have been convicted of bigamy without it coming to her attention because she claimed that they were close and did everything together as a couple.

“Appellant (Anastasia) failed to convince us that while she might not have known at the time of her marriage to the deceased that he was still married to his ex-wife, she learnt of the defect in her marriage long before deceased died,” read the judgment.

The Supreme Court upheld the high court’s decision and dismissed her application.