Woman wins funeral claim despite 'not sitting on mattress to mourn'

Insurer told to pay claim based on equity or fair treatment

A woman has won a funeral policy payout claim after proving she was entitled to it as a customary wife, despite them not living together at the time of the death and the insurer's riposte that she did not “sit on the mattress” to mourn him.

The life insurance division of the National Financial Ombud Scheme ruled in her favour after the insurance company argued she did not meet the criteria to qualify as a spouse as required by the policy.

Denise Gabriels, the division's lead ombud, ruled the insurer should pay the claim based on equity or fair treatment. She assessed two key issues:

• whether a woman should be disregarded as a spouse if she does not sit on a mattress to mourn her deceased partner before the funeral; and
• what the requirements are for recognition of a customary marriage.

The man died of natural causes eight years after the policy was taken out.

The policy's terms and conditions stipulated a marriage means “a marriage or union in accordance with the Marriage Act, the Recognition of Customary Marriages Act, the Civil Union Act or the tenets of a religion”. It also recognises a union where two people are living together as if married, with the commitment of doing so permanently, provided they have been doing so for at least six months.

The woman said she and the deceased had lived together for several years and had two children. He made frequent deposits into her bank account and paid lobola in anticipation of marriage, she said.

The insurance firm countered that the terms of the policy were not met because they had lived apart for some time before his death and while validating the claim with third parties, they discovered she did not ‘’sit on the mattress’’ to mourn the deceased as was customary for a widow. 

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

The insurer also argued the money deposited into the bank account of the complainant was for the maintenance of their children.

The woman submitted affidavits from the deceased’s mother and the local councillor confirming she and the deceased cohabited for several years until he moved to a city in a different province because of better employment opportunities and she still visited his family home to perform her “wifely duties”.

In a provisional ruling after the case had been discussed by the adjudicators at a meeting, they said 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 the family members of the deceased and the complainant undertook that the complainant would become the deceased’s customary wife after lobola was paid. Both parties intended to be the customary spouse of one another and that certain traditional customs were not observed, such as sitting on a mattress when a spouse dies, does not invalidate their customary marriage as customary law is evolving. The meeting believes 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.

They accepted that the couple were not living together for socioeconomic reasons after hearing from the deceased's mother that he moved to Johannesburg because he was retrenched.

“A reasonable inference can be made that if it were not for these socioeconomic reasons the deceased and the complainant would still have been residing together as intended.”

The adjudicators also found that as insurable interest need only exist when the application was made all requirements of the contractual definition of “marriage” had been met.

Responding to the adjudicators’ provisional ruling, the insurer submitted 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 cited case law which held that there could be “untenable results with an inflexible rule that there is no valid customary marriage if one ritual has not been observed”, saying this would be incongruous with customary law's inherent flexibility and pragmatism which allows the possibility of compromise settlements.

They believed the deceased had moved to find better employment opportunities and there was a reasonable inference that the lobola payment would have been settled in full once he was able to do so.

“Family members viewed the deceased and the complainant as husband and wife. The deceased and the complainant considered each other husband and wife and no evidence has been submitted which suggests the deceased had another partner apart from the complainant. It is not uncommon for spouses to live in different provinces, even countries, due to socioeconomic reasons while still maintaining their spousal relationship.”

In its ruling, the adjudicators said the insurer should pay the claim based on equity given the circumstances of the case.

The insurer abided by the ruling and paid the claim.

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