Cohabitants rights and Road Accident Fund claims

While it may be common knowledge that dependants of a deceased who passed away in, or as a result of a car accident, has a right to claim from the Road Accident Fund (RAF), a ground-breaking judgment delivered by the Gauteng High Court provides a new perspective on dealing with claims rejected by the (RAF) due to the latter’s stance on “good morals”. In this judgment, it was decided that couples no longer have to be in a legal marriage to enable them to claim for loss of support and maintenance in the case of death if their partner died in a car accident.

Do you have to be married to claim?

Normally, if spouses are married and one of the spouses dies in an accident, the surviving spouse would have a claim against the RAF. The matrimonial consequences in terms of the Matrimonial Property Act apply. Therefore, if one of the spouses dies in an accident, the surviving spouse would have a claim against the RAF.

In the abovementioned Gauteng case, the plaintiff’s claim was declined by the RAF due to the couple not being legally married. Brenda Jacobs referred the matter to court after her partner, Wesley Stevens died in September 2015 after being fatally injured in a car accident. At the time of his death, Wesley was still married to his estranged wife and at the same time, engaged to Brenda. The couple had been living together for a few years. Wesley was the sole income earner for the household, while Brenda was a stay-at-home partner. Needless to say, Brenda was financially dependent on Wesley. The Court held that there was a promise of marriage between the parties and that their respective families accepted one and another and regarded them as husband and wife.

If you are married but you are estranged from your spouse, what is the position?

The Court was satisfied that the deceased undertook to support the plaintiff “with the intention to be legally bound by such undertaking”. The Judge stated that the deceased owed the plaintiff a contractual duty to support and the law ought to protect it. Furthermore, the Judge acknowledged that in reality, some couples find themselves living together with the intention of getting married and attracting reciprocal duties of support but having a legal bar to getting married. The Court awarded the plaintiff 100% of her claim, with the quantum to be determined.