Adjudicator rules in favour of girlfriend over customary wife in R4.5 million death benefit case

The customary wife of a deceased man failed in her attempt to claim a death benefit as she had not proved dependency on him and was an estranged spouse.

In her complaint to the Pension Funds Adjudicator, Muvhango Lukhaimane, the wife was unhappy that the Becsa Provident Fund distributed the death benefit of R4.5 million to the deceased’s four children and to his girlfriend. The latter is to receive 15% of the death benefit while the rest was divided between 15% and 25% to the children.

The deceased was a member of the fund until he died in September 2023. The complainant submitted that she was married to the deceased and was financially dependent on him. She provided a copy of a lobola letter dated September 17, 2022 and a marriage certificate in support of her submissions.

The complainant submitted that in terms of the Recognition of Marriage for Customary Marriages Act, either spouse may apply to register his or her marriage after the death of the other. She explained that a few months after the deceased died, she registered her marriage in terms of customary law. Therefore, she said it was not clear as to why the deceased, in his insurance policy, stated he was single while he was customarily married.

The complainant said she did not have any proof that she was financially dependent on the deceased as they bought groceries together and he would give her money in cash. The complainant said she resided in Kwa-Mhlanga and the deceased resided in Witbank. Although they did not reside together, she would visit him on weekends or when she was off from work.

The fund submitted that according to the investigation report, the deceased was never married. The girlfriend had indicated that she was the deceased’s partner and had been residing with him from June 2022 until the time of death. She also provided the fund with a bank statement showing money received from the deceased to prove her financial dependency.

The fund established that the girlfriend qualified as a factual dependent on the basis that she was financially dependent on the deceased, she lived with him, and they shared common household responsibilities. The fund submitted that the complainant did not furnish it with proof of her dependency on the deceased.

In her determination, Lukhaimane said the Recognition of Customary Marriages Act provides for the posthumous registration of a marriage. Thus, the complainant, as the customary wife, qualified as a legal dependant. Lukhaimane added the girlfriend was the deceased’s life partner and resided with him at the time of death. The complainant and the deceased lived apart.

“The girlfriend and the deceased shared a common household and expenses. Therefore, she qualifies as a factual dependant and was allocated a portion of the death benefit. The deceased's children qualified as his legal dependents and had a right to be considered for a death benefit,” Lukhaimane said.

She explained that while the customary wife qualifies as a legal dependant by virtue of her marriage to the deceased, this does not necessarily entitle her to an allocation of the death benefit, as the death benefit does not form part of the deceased’s estate and is therefore not subject to any matrimonial property regime.

Cape Times