Meaning of a Common Law Wife
July 4, 2018
The Ombudsman heard a case around a common law wife dispute in 1997 when the insurer did not take into proper account the terms stated in his very own policy.
The claimant had a common law wife and was the funeral policyholder. The policy provided funeral benefits to the claimant in the event she pass away.
Funeral benefits were also available to other members of his family, and this included his wife. He had paid his premiums, but in 2001, he divorced his wife.
She suffered from brain cancer and could not look after herself. He never left home after the divorce but continued living with her as a common law wife. In 2007 she died from the cancer. He lodged a claim for the R10 000 funeral benefit.
Common Law Wife Claim is Declined
The insurer declined his claim, stating the claimant had divorced his wife in 2001. Divorced spouses do have cover in the policy. The insurer has to furnish the Ombudsman offices with a copy of the policy.
In it, there was a term that did decree that “Divorced spouses do not have cover”. Unfortunately, the insurer overlooked two other important provisions in the policy. These dealt with common law spouses and the provisions, recognising that such common law spouses did indeed enjoy cover.
The policy provides cover for spouses in an ordinary civil marriage, plus it provided cover for common law spouses. In the policy, it defined the word “spouse” also to include a “common law spouse”.
The policy defined the common law spouse as a “person recognised by (the insurer) at its sole discretion as a spouse, after a cohabitation period of 6 (six) months”. Secondly and in any event, “Divorced spouses are not covered” did not stand alone in the policy. They were contained in a definition under “divorced spouse” which was to include a “spouse who is no longer a party to a common law relationship”.
The main question was whether the divorced woman, at the time of her death, was classified as a common law spouse as laid out and defined in the policy. The provisions showed that the complainant’s wife remained as his common-law spouse after their divorce when applying the facts of the case.
They told the insurer, who claimed there was not proof that since their divorce the complainant and his common-law wife had been living together for whatever period, if indeed at all.
In South African law there is no such a thing as a common law marriage. South Africans often think that living together for a lengthy time gives them legal rights. This is a common misunderstanding.
Unmarried partners without a cohabitation agreement can’t expect the law to protect them. However some have had success in convincing the courts to acknowledge the existence of their relationship.
Satisfactory conclusion for the claimant
The conclusion to this particular matter was that the insurer insisted that their office would have forensic investigators investigate the complainant’s home set-up over the years under discussion, but it never did so. Instead, it did inform the Ombudsman that they would pay the claim, accepting the common law wife as a spouse.
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* Wikipedia definition of common law wife
All info was correct at time of publishing