The Life Insurance Ombud has ruled in favour of a customary wife's claim, highlighting the legal recognition of traditional marriages in South Africa's insurance sector. File image.
The Life Insurance Division of the National Financial Ombud Scheme has ruled in favour of a woman who claimed funeral benefits as the customary wife of her deceased partner.
This comes after a funeral insurance claim was made by the complainant, who asserted her recognition as the deceased’s customary wife.
The complainant, who had been in a long-term relationship with the deceased, sought to claim funeral benefits from Sanlam Life Insurance Ltd following the tragic passing of her partner. Despite their years together, during which they had two children and financial commitments that included the payment of lobola, the insurer denied the claim. The basis of their refusal rested on the claim that the complainant was not the deceased's spouse as defined by their policy, further compounded by their argument that she had not mourned in accordance with traditional customs.
Denise Gabriels, Lead Ombud of the Life Insurance Division, ruled that the insurer should pay the claim on the grounds of equity and fair treatment, despite the insurer contesting the validity of the marriage due to non-compliance with certain customs and policy definitions.
"The deceased had made frequent deposits into her bank account and had paid lobola in anticipation of marriage. However, 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," Gabriels said.
It is an African custom that after a person's death and before 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," Gabriels said.
According to Gabriels, 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 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 said.
Gabriels 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”.
"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," she said.
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 spouses 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 said.
The adjudicators said since insurable interest need only exist at the application stage, all requirements of the contractual definition of “marriage” had been met at the application stage. Hence the complainant and the deceased were in a union as defined by the policy, at the 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 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:
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.
PERSONAL FINANCE