Remarriage contingency in loss of support claims for customarily married widows
19/06/2008

The general principle of making a remarriage contingency deduction when calculating the loss of support claim of a widow is a well established one in our Law and is based on the following main objectives :

1. An award for damages due to the negligent killing of ones spouse is intended to be compensatory for the widow’s loss of support and not to place the widow in a better position financially; and

2. To uphold the principle that no women can be dependent on two husbands for support at one time.

Actuarially, remarriage contingency tables are derived from statistics on three of the minority race groups in South Africa, despite this being discriminatory and based on antiquated data from a population census of Whites, “Coloureds” and Asians dating as far back as 1970.

Traditionally, remarriage contingency deductions for African widows have been made using the Coloured rate, or a percentage of the rate applicable to a Coloured widow of the same age .

However, the following factors contribute to the argument for a remarriage contingency not to be applied to loss of support claims arising from customary marriages:

1. Customary marriage is not automatically nor necessarily dissolved by death.
Dissolution of a marriage is completed when the woman is returned to her family group and when the lobola (bride wealth) is refunded back to her husband’s family, and is not statutorily regulated . Because a customary marriage is the union of two families, its existence is not dependent on her husband remaining alive. This creates a lasting bond to the deceased’s family.

2. The practice of the Levirate Union (ukungena or kenela)
In instances of a childless customary marriage or where a young widow remains capable of bearing further children, she will continue to reside at the deceased’s homestead in the care of his family and is expected to enter into a levirate union with one of the deceased’s brothers, for the purpose of bearing more children on the deceased’s behalf. This is not a valid customary union and does not create a right of support in favour of the widow. On a practical level, one can conclude that this would prevent her from entering into any further customary unions.

3. Widows of customary marriages face cultural and social pressures not to remarry
While a widow can not be forced to enter into a levirate union, there is cultural and social pressure on her to stay with her deceased’s husband’s family. The main reason for this is that a consequence of her return to her family’s homestead, is the refund of the lobola to her deceased husband’s family. Against this background, remarriage is frowned upon, and in some cultures, absolutely not allowed.

4. A widow’s right to maintenance from the deceased’s heir is dependent upon her residing at the homestead of his family.
Despite having given rise to much constitutional debate, a fundamental feature of customary law is that of the inability of a female to inherit. Traditionally, everything that a woman acquires during her married life becomes a part of her husband’s estate. She can however retain her and her children’s right to proper maintenance from the deceased’s heir, as well as the use of the estate’s assets, on the implied condition that she remains on the homestead and continues to fulfill her duties as the wife of the deceased. This precarious vulnerability of the widow of a customary marriage is not to be underestimated as a factor limiting her remarriage prospects.

An unadjusted award for loss of support will not usually result in a widow being placed in a more favourable position or in a position where she is being supported by two husbands simultaneously. It merely secures her rights to due compensation, as the probabilities of her future re-marriage are based on an intricate weave of cultural and social circumstances. Practitioners should fully investigate the individual position of each claimant and the specific customs that apply in her particular family and culture.
Louise Bick
Candidate Attorney
louise-b@adamsadams.co.za

Nicolette Koch
Partner
nicolette-k@adamsadams.co.za