CR263 Funeral insurance policy – definition of a “common law spouse”

Funeral insurance policy – definition of a “common law spouse” – meaning of.


This was a case where, as sometimes happens, the insurer failed to take proper account of the terms of its own policy.

In 1997 the complainant had become a policyholder in a scheme that provided inter alia funeral benefits in the event of the death of himself or certain members of his family including his spouse. He had maintained the policy ever since.

In 2001 he and his wife were divorced, but by then she had been suffering for a couple of years from brain cancer and was unable to look after herself. He therefore never left home but continued at all times to live with her as his common law wife.

In 2007 she died of her brain cancer and when the complainant lodged a claim for the R10 000 funeral benefit the insurer repudiated liability on the ground that he and she had been divorced in 2001, and that a divorced spouse was not covered by the policy.


After a considerable delay the insurer eventually furnished the office with a copy of the policy. One of its terms did indeed stipulate that “Divorced spouses are not covered”, but the insurer’s contention nevertheless lost sight of two other relevant provisions in the policy that dealt with the provision of common law spouses and that recognised that such spouses were covered.

In the first place the policy provided cover, not only for spouses in ordinary civil marriages, but also for common law spouses, and it defined a “spouse” to include a “common law spouse”. A common law spouse was in turn defined 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, the words “Divorced spouses are not covered” did not stand alone, but were contained in a definition of “divorced spouse” which was stated to include “a spouse who is no longer party to a common law relationship”.

The real question was therefore whether or not, at the time of her death, the complainant’s wife was a common law spouse as defined in the policy.

The aforesaid provisions showed that, when applied to the facts of the case, the complainant’s wife had remained his common-law spouse after the divorce. When this was put to the insurer, it then adopted the attitude that it had not been proved that since the divorce the complainant and his wife had been living together either for six months or at all. The office pointed out that, when submitting his complaint, the complainant had furnished an affidavit made by him in which he had explained they had never parted company. At the offices’ request, and in any event, the complainant thereafter filed a further affidavit, one by the priest who had served him and his wife for the last nine years, in which the priest confirmed that they had been living together as man and wife for all of that time.

The insurer then relied on a provision in a document it issues called “Claims Procedure” in which it was stipulated that affidavits do not as such constitute sufficient proof. The office pointed out, however, that this document had not been part of the policy and was therefore not binding.


Although the insurer then informed the office that it was going to arrange for its forensic investigator to look into the complainant’s home circumstances over the years concerned, it did not apparently do so but instead notified the office that the claim would be paid.

January 2009