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 Life Insurance Division of the National Financial Ombud Scheme (NFO) 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, the Lead Ombud of the Life Insurance Division, ruled that the insurer should pay the claim based on equity or fair treatment.
The complainant 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. The deceased made frequent deposits into her bank account and paid lobola in anticipation of marriage.
But the insurer insisted that the terms and conditions of the policy were not met because the complainant and the deceased lived apart for some time before his death. It 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 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 named the deceased as her spouse in a funeral insurance policy underwritten by Sanlam Life. Eight years later, the deceased passed away from 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 because, 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 because the complainant and the deceased did not live together for some time prior to his death.
It submitted that while validating the claim with third parties, it 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 that was paid into the bank account of the complainant was for the maintenance of their children.
Valid customary marriage
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 before the death of the deceased, the complainant and the deceased were not living together because of socio-economic reasons. The mother of the deceased 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 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 have been living together as intended.
The adjudicators said that because an insurable interest needs to exist only 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.
Onus discharged
In responding to the adjudicators’ provisional ruling, the insurer submitted, among other things, 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 because 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 (2019), where the Supreme Court of Appeal (SCA) held 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”.
The SCA said 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 meeting took the view that the complainant had discharged the onus to prove that she was indeed the customary wife of the deceased 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, because of socio-economic reasons while 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.
