Road Accident Fund Claims – Unmarried Couples

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Landmark Judgment on Road Accident Fund Claims for Unmarried Couples

Couples who are not married but who are living together are afforded some retribution in the form of a recent Gauteng High Court Judgment delivered by Judge Colleen Collis on 23 November 2018. The Judge ordered that Brenda Jacobs, the partner of the deceased who died in September 2015 in car accident, is entitled to claim for loss of support and maintenance from the Road Accident Fund (“RAF”), irrespective of the fact that they were not married at the time of his death.

Brenda and her partner lived together in what is regarded as a “cohabitation relationship”. This is defined as a permanent relationship between two or more persons who live together without being married in terms of the Marriage Act 25 of 1961, Civil Union Act 17 of 2006 or the Recognition of Customary Marriages Act 120 of 1998. Those who are in a cohabitation relationship are usually not afforded the same protection as those who are married in terms of these Acts.

There have been much debate in the past as to what a person is entitled to in the event that after a long period of living together in a cohabitation relationship, the other partner dies or the relationship comes to an end. There have been conflicting Court decisions on this issue and the burden of proof with regards to the requirement for maintenance and entitlement of loss of support has been more stringent. For example, in the past, most similar cases had required that there be some kind of maintenance order in place. The Courts have always focused on the sanctity of marriage and what constitutes a nuclear family and the importance thereof. Judge Collis emphasised that the times are changing and a nuclear family is not so much the norm anymore in South Africa.

This is not the first time the Courts are faced with this challenge. In 2015, Pretoria the High Court ordered that the RAF pay R528000 for loss of support and maintenance to Carina Koch whose fiancè died in an accident. The couple had been living together for 9 years. In coming to its decision, the Court took into consideration that even though the couple did not marry, the deceased had undertaken to support her and had he not died, he would have continued to do so.

What separates the 2015 case from this case, is that although Brenda Jacobs was living with the deceased and engaged to him at the time of the accident, the deceased was already married and was in the process of being divorced from his estranged wife. The divorce had not been finalised at the time of the accident. In response to this Judge Collis remarked: “Cohabitation outside a formal marriage and, dare I say, even where one of the parties is still married, is now widely practiced and accepted by many communities.” Judge Collis said that Jacobs convinced the court that the deceased loved her and even though the divorce was not finalised, he intended on marrying her.

Today, most people choose not to marry but rather start a family and live together without having the usual marital connotations attached to their relationship. Regardless of whether couples are married or are in a relationship, the situations they usually find themselves in will be the same. This judgment does not only serve as confirmatory proof that a cohabitation relationship is worthy of protection from the law, but that the law itself needs to develop and adapt to accommodate how people and times have evolved.



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