The Pension Funds Adjudicator has upheld a provident fund’s decision to exclude a customary wife from a R4.5-million death benefit allocation because the complainant failed to prove she was a financial dependant, was estranged from the deceased, and provided insufficient or inconsistent documentation.
The wife complained to the Office of the Pension Funds Adjudicator after the BECSA Provident Fund distributed the death benefit of R4 514 636.46 as follows: 15% and 22.5% to the deceased’s daughters, 22.5% and 25% to his sons, and 15% to his girlfriend.
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 17 September 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 indicated that after the member’s death in September 2023, she registered her marriage in terms of customary law on13 March 2024.
The complainant said she did not have any proof that she was financially dependent on the deceased because they bought groceries together and he would give her money in cash.
Although they did not live together, she would visit him on weekends or when she was off from work.
Discrepancies in the documentation
The BECSA Provident Fund submitted that the investigation report showed the deceased was never married and had five children.
The girlfriend indicated she was the deceased’s partner and had been living with him from June 2022 until he died. She provided the fund with a bank statement showing money received from the deceased to prove her financial dependency.
The fund submitted it established that the girlfriend qualified as a factual dependant because 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 marriage and her dependency on the deceased.
The fund also submitted that it had noted a few discrepancies relating to this matter. A death certificate issued on 11 September 2023, and submitted to the fund by the deceased’s brother, indicated that the member was never married.
On 28 January 2025, the fund received a second death certificate, a marriage certificate, and a lobola letter. The second death certificate had an issue date of 21 November 2023 and indicated that the deceased was married.
The fund said the marriage certificate was printed on 13 March 2024, with the date of marriage recorded as 17 September 2022. The fund said it was in possession of a beneficiary nomination form completed by the deceased, signed and dated 21 April 2023, wherein the deceased indicated his marital status as single and nominated his brother to receive a funeral benefit.
The fund noted that the deceased had completed this nomination form, although, according to the complainant, the customary marriage occurred in 2022.
The fund submitted that one of the daughters said she did not know the customary wife and confirmed she was not present at the deceased’s funeral. The daughter further stated that the deceased was not married and that, prior to his passing, he was living with his girlfriend.
The fund said the customary wife had been requested to submit certain documents, such as a lobola letter between her and the deceased; birth certificates of the children that the deceased had with her; and her proof of financial dependency on the deceased. The requested documents were never submitted.
As the documents mentioned were not forthcoming the fund could not prove the customary wife’s dependency, or the martial status of the deceased.
No proof of financial dependency
In her determination, the Adjudicator, Muvhango 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 said the girlfriend was the deceased’s life partner and lived with him at the time of his 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 dependants and had a right to be considered for a death benefit.
“The facts indicate that the complainant was the deceased’s legal spouse. However, the investigations indicated that she was an estranged spouse as confirmed by submissions to the fund, as well as the fact that the deceased resided with his girlfriend.
“Whilst 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.
“Further, there is no proof that the customary wife was financially dependent on the deceased for maintenance or other reasons.
“The fund submitted that due to the customary wife not providing the requested documents, it was not able to ascertain her dependency. Thus, the fund did not allocate a portion of the death benefit, as she could not provide proof of her financial dependency,” said Lukhaimane.
The Adjudicator was satisfied that the fund took into account relevant factors and ignored irrelevant factors and found no reason to set aside its decision.
