FANews
FANews
RELATED CATEGORIES

Life Insurance Ombud rules in favour of customary wife

09 October 2024 National Financial Ombud Scheme South Africa (NFO)
Denise Gabriels

Denise Gabriels

Must a woman be disregarded as a spouse if she does not sit on a mattress to mourn her deceased partner before the funeral? What are the requirements for recognition of a customary marriage?

These are some of the questions that challenged the open-mindedness of the Life Insurance Division of the National Financial Ombud Scheme in a matter that came up for adjudication recently.

Although the complainant in a funeral insurance claim was not the deceased’s spouse as required in terms of the policy, Denise Gabriels, Lead Ombud of the Life Insurance Division, ruled that the insurer should pay the claim based on equity or fair treatment.

The complainant had submitted that the deceased was her customary spouse and she and the deceased had been living together for a long time and have two children together. The deceased had made frequent deposits into her bank account and had paid lobola in anticipation of marriage.

But the insurer insisted that the terms and conditions of the policy were not met since the complainant and the deceased lived apart for some time before his death. They also submitted that the complainant did not “sit on the mattress’’ to mourn the deceased.

It is African custom that after a person's death and prior to the funeral, the furniture is removed from the house and the widow is expected to sit on a mat or mattress while covering herself with a blanket.

The complainant had named the deceased as her spouse in a funeral insurance policy underwritten by Sanlam Life Insurance Ltd. Eight years later, the deceased passed away due to natural causes. In the funeral benefit claim documents, the complainant and the deceased were described as life partners and it appeared that they had been staying together since February 2011.

The claim was, however, repudiated by the insurer on the basis that it did not meet the terms and the conditions of the policy as at the time of his death, the deceased was not the spouse of the complainant as defined in the policy.

The relevant terms and conditions of the policy stipulate that a marriage means “a marriage or union in accordance with the Marriage Act, 1961, the Recognition of Customary Marriages Act, 1998, or the Civil Union Act, 2006, or the tenets of a religion”. The policy also recognises as a marriage a union where two persons are living together as if married, with the commitment of continuing to do so permanently, provided they have been doing so for at least six months.

The complainant submitted affidavits from the deceased’s mother and the local councillor confirming that the complainant and the deceased had been living together for several years. The complainant also submitted bank statements showing frequent deposits by the deceased; a motivational letter explaining that lobola had been paid; and an application for insurance by the deceased wherein he had nominated her as beneficiary and indicated her as his spouse.

She explained that he had moved to the city in a different province because of better employment opportunities, and that she had still visited his family home to perform her “wifely duties”.

The insurer insisted that the terms and conditions of the policy were not met since the complainant and the deceased did not live together for some time prior to his death. They submitted that while validating the claim with third parties, they discovered that the complainant did not ‘’sit on the mattress’’ to mourn the deceased as was customary for a widow. The insurer averred that the money which was paid into the bank account of the complainant was for the maintenance of their children.

In a provisional ruling after the case had been discussed by the adjudicators at a meeting, they stated the fact that the customary marriage was not registered in terms of the Recognition of Customary Marriages Act did not invalidate it. Neither did the fact that the complainant did not sit on the mattress to mourn the deceased.

“Evidence suggests that the family members of both the deceased and the complainant undertook that the complainant would become the deceased’s customary wife after lobola was paid. In addition, both parties intended to be the customary spouse of one another, and the fact that certain traditional customs were not observed, like sitting on a mattress when a spouse dies, does not invalidate their customary marriage, as customary law is ever evolving.

“Hence, the meeting is of the view that the complainant and the deceased were in a valid customary marriage as per the Recognition of Customary Marriages Act and the policy provision,” the adjudicators stated.

The adjudicators also submitted that prior to the death of the deceased, the complainant and the deceased were not residing together because of socio-economic reasons. The mother of the deceased had advised that he was retrenched in 2009 and had to move to Johannesburg to find better employment opportunities.

However, during this time, the deceased and the complainant still maintained their relationship. Thus, a reasonable inference can be made that if it were not for these socio-economic reasons, the deceased and the complainant would still have been residing together as intended.

The adjudicators said since insurable interest need only exist at application stage, all requirements of the contractual definition of “marriage” had been met at application stage. Hence the complainant and the deceased were in a union as defined by the policy, at application stage.

In responding to the adjudicators’ provisional ruling, the insurer submitted, amongst others, that a customary ceremony or celebration of the union is a requirement for a valid customary marriage and payment of lobola alone does not constitute a union. The complainant was not allowed to sit on the mattress to mourn the deceased because they were not married,” the insurer contended.

A subsequent meeting of the adjudicators was of the view that notwithstanding the insurer’s view that a valid customary marriage did not come into effect between the deceased and the complainant as the payment of lobola does not constitute a customary marriage, a valid customary marriage between the complainant and the deceased indeed did come into effect.

The meeting had due regard to case law in the matter Mbungela and another v Mkabi and Others (820/2018) [2019] ZASCA 134 (30 September 2019) which held that there could be “untenable results with an inflexible rule that there is no valid customary marriage if just one ritual has not been observed, even if the other requirements, especially spousal consent, have been met”.

“Such a rule would be incongruous with customary law’s inherent flexibility and pragmatism which allows even the possibility of compromise settlements among affected parties…, in order to safeguard protected rights, avoid unfair discrimination and the violation of the dignity of the affected individuals,” the Supreme Court of Appeal maintained in the above case.

The meeting took the view that the complainant had discharged the onus to prove that she was indeed the customary wife of the deceased as per the terms and the conditions of the policy, based on the following reasons:

• The financial circumstances of the deceased led him to relocate to find better employment opportunities. Thus, there is a reasonable inference that if he had the financial means, he and the complainant would have lived together and the lobola payment would have been settled in full. Furthermore, it is not uncommon for spouses to live in different provinces, even countries, due to socio-economic reasons whilst still maintaining their spousal relationship.
• Family members and the leaders of the community viewed the deceased and the complainant as husband and wife; the deceased and the complainant considered each other as husband and wife; and no evidence has been submitted which suggests that the deceased had another partner apart from the complainant.

In a final ruling the adjudicators said the insurer should pay the claim based on equity given the circumstances of this case. The insurer abided by the final ruling and paid the claim.

Latest RELATED news
Quick Polls

QUESTION

The South African authorities are hard at work to ensure the country is removed from the global Financial Action Task Force grey-list by February or June 2025. What do you think about their ongoing efforts?

ANSWER

But what about the BRICS?
Compliance burden remains, grey-list or not.
End-2025 exit is too optimistic.
Grey-list is the new normal.
Too little, too late.
fanews magazine
FAnews October 2024 Get the latest issue of FAnews

This month's headlines

The township economy: an overlooked insurance market
FSCA regulates crypto assets: a new era for investors
Building trust: one epic client experience at a time
Two-Pot System rollout underlines the value of financial advice
The future looks bright for construction
Subscribe now