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Sylvia Chirawu Correspondent
The question that has baffled those in the legal profession is this — should mere possession of a marriage certificate entitle a spouse to inherit from the estate of their late spouse despite the fact that the two may have separated, but not divorced?
What’s in a marriage, people often ask. Various answers are given — love, companionship, children, reciprocal relations and many other “benefits”. For inheritance matters, the answer is simple — everything. The legal framework in Zimbabwe is such that the type of marriage one has determines the inheritance framework that will be applied to a deceased estate.
Put simply, for persons married under customary law, there is a prima facie presumption that customary law applies to their estate and for persons married under general law, there is a prima facie presumption that general law applies to their estate. Customary law applies to those married under the Customary Marriages Act Chapter 5:07 (formerly Chapter 238) and those in what are called unregistered customary law unions — where lobola is paid. General Law applies to those married under the Marriage Act Chapter 5:11(formerly Chapter 37).
However, it is possible to show that although a person might have been married under customary law, general law should apply to their estate or vice versa. This at law is done through what is called a choice of law process.
The question that has baffled those in the legal profession is this — should mere possession of a marriage certificate entitle a spouse to inherit from the estate of their late spouse despite the fact that the two may have separated, but not divorced?
This applies to those who have marriage certificates. For those who do not have marriage certificates, under customary law if gupuro is not officially given and parties go their separate ways, should the surviving customary law wife or even husband claim a share of the deceased estate on the grounds that under customary law, at the time of death they were still husband and wife?
This article will focus on the Chapter 5:11 marriage which states that persons who marry should only have one spouse at any given time. The Herald recently reported a case where a woman — Ella — left her husband and went on to ‘marry’ twice and even had children with both the second and third ‘husbands’. In the High Court however she was declared the surviving spouse of the late Bookwet Jonathan Munjeri who passed away in October 2002. The reason that the court gave for declaring her as a surviving spouse is very simple — at the time of Bookwet’s death, his marriage to Ella still subsisted. This issue often pits two women against each other.
Based on the current legal framework, the High Court was very correct in ruling that Ella is a surviving spouse of the late Bookwet. When a person dies, the law is interested in the status quo — was there a valid marriage between two parties — if yes the next issue is was the marriage still in existence at the time of death and if the answer is yes, that ends the matter.
It does not matter whether the two were on separation, whether there was a process of divorce or threats of divorce, or whether the deceased or the surviving spouse were ‘married’ to someone else. As long as there is no formal divorce proved by a ‘divorce’ order from the High Court, the marriage will be recognised as still valid.
The reality, however, is very different. There are thousands and thousands of people who are married under Chapter 5:11 who go separate ways but never take the trouble to divorce formally. Some wrongly believe that being on separation for 12 months is an automatic divorce.
It may be for purposes of the Matrimonial Causes Act but it has to be followed by instituting divorce proceedings in the High Court and getting a decree of divorce. The husband may go on to marry other women under different marriage frameworks and even have children.
The wife may also do the same as in the reported case. But what binds them together is this marriage — proved by a marriage certificate. It is not uncommon to find that a surviving spouse actually hears about the death on facebook or other social media and she or he holds the trump card because she or he will still have a valid marriage.
The writer has handled such cases where a spouse goes away for 25 or more years, some even to the diaspora and as soon as they hear about the death of their spouse, they come back waving the marriage certificate. This often causes conflict as the truth of the matter is that their spouse would have progressed and moved on — ‘married’ — and acquired property with the other ‘spouse(s)’.
What then happens to the woman who thought she had it all — husband, children, and assets — only for the law to tell her that she actually had no ‘husband’ or assets? He belonged to some other woman despite separation from that woman. This has proved to be a bitter pill for women especially whose deceased ‘husbands’ turn out to have been legally married to someone else at the time of their death.
The law tried to deal with situations of women who are married under customary law and a husband then goes on to ‘marry’ someone else under Chapter 5:11 without dissolving the customary law marriage or union. For purposes of inheritance, both wives will inherit and both marriages will be treated as customary marriages. The law however has not dealt with the situation where a man who is married under chapter 5:11 goes on to ‘marry’ someone else without dissolving the marriage.
The law simply states that anything that comes after a Chapter 5:11 no matter the circumstances is not recognised. Perhaps the law unduly considers a Chapter 5:11 marriage as superior. Not only will the ‘marriage-waving’ spouse be legally recognised but she or he also inherits assets left by the deceased spouse. This is despite the fact that they may have been on separation for years. She or he simply benefits even where she has not spent a single cent.
So many of such cases involve a woman who is ‘married’ to a man who still has an existing Chapter 5:11 marriage with another woman. Relatives may ‘recognise’ and support such woman, but the one with the marriage certificate is the victor for lack of a better word. In Shona they say, she or he who has money is the most important one but for inheritance she or he who has a valid marriage is the most important one.
The Constitution of Zimbabwe is strong on gender equality and even states that there should be protection of spouses at death but the question is — which spouse? What then is the role of the court when faced with such a situation? The courts have simply followed the law to the letter.
Can the courts then look at the circumstances and decide to declare someone who has a marriage certificate as not being a surviving spouse because they were not staying together with the deceased at the time of death? That at law is a moot point. The bottom line when all is said and done is that the amendment to the laws of inheritance made in 1997 had good intentions — to protect surviving spouses and children.
But the law never envisaged such scenarios as we are witnessing today. The law never envisaged that someone who has been away for 23 years can come back and simply claim that she or he is a surviving spouse because they were not divorced formally from the deceased. Thus it is imperative for the law makers to look at these issues carefully. Now is the opportune time in view of the alignment of laws process.
Sylvia Chirawu is a lawyer by training; family law and inheritance law expert, gender activist and expert. She writes in her personal capacity.
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