adminTichawana Nyahuma Correspondent
In the years gone by in our country, polygamous marriages were largely successful and blissful unions.
Back then, such relations were created openly. If a man who had one wife wanted a second one, his first port of call was his own wife. He would plead his case with her and she would consider such an approach as a show of respect. Consequently, she would not decline the application.
She could even inquire from her dear husband whether he had already settled on any candidate for the newly-created, but vacant position of wife number two. If not, then she could offer assistance in identifying one or make recommendations to him to approach a particular individual. In some instances, it was the wife who would ask the husband to consider polygamy because she needed someone younger to assist her at the home. Thus, the second wife would naturally be welcomed by the first wife and the whole family. It was on the back of these open approaches that in those days, polygamous marriages were largely prosperous, peaceful and delightful associations.
However, nowadays, particularly in urban settings, polygamous marriages are started and completed in secrecy. If somehow, the cat should escape from the bag, as it inevitably so often does, then you can be assured of a war of attrition between the wives.
This instalment discusses the legal space for polygamous marriages in Zimbabwe and property rights of the concerned wives and children upon the death of their husband where he does not leave a written will.
There is a separate regime of laws that applies if such a polygamous husband dies, but leaving behind a valid will but that is a subject for another day. Our law recognises three types of marriages, namely the civil marriage that is contracted in terms of the Marriage Act (Chapter 5;11, formerly Chapter 37), the customary marriage that comes into being in terms of the Customary Marriages Act (Chapter 5;07) and finally, the Unregistered Customary Law Union, UCLU, to which the great majority of native Zimbabweans belong.
The 5;11 marriage is what the law calls “monogamous”. Such a union, as any other, can only be terminated by death of one of the spouses or divorce. Significantly, neither of the parties is permitted to enter into any other marriage with another person. If either of the parties, practically the husband, should decide to marry another person during the life of that marriage, then he commits a criminal offence known as bigamy and upon conviction, may be sentenced to pay the applicable fine or be jailed for a period of up to one year.
In a polygamous set up, meaning a marriage in which more than one wife is permitted, such as the said 5;07 and the UCLU, if the husband purports to enter into a monogamous marriage, the said 5;11, he also commits bigamy and may be sentenced accordingly upon conviction in the criminal court.
Since the 5;11 is generally considered to be the most prestigious marriage, a person who is already in a polygamous union is not permitted to “upgrade” the marriage by going for the 5;11 with one of his wives. It seems that “upgrading” is only possible or permissible in a situation where though in a potentially polygamous marriage, the husband is in fact married to one woman and seeks to upgrade the union with that particular woman. Once done, he disqualifies himself from looking for possible new partners unless the 5;11 marriage is first dissolved through divorce or the death of his wife.
But what is the legal position if the husband dies without having written a will in each of these scenarios? In the case of a marriage that was contracted according to 5;11, things are pretty straight forward. The property will fall into the hands of the surviving spouse. If any other woman comes forth to lay a claim, say as a customarily married wife, whether under 5;07 or UCLU, she will not be entitled to any share in the estate of the now deceased if she was married by him when he was already in Holy Matrimony with someone else under 5;11.
Nevertheless, such a woman’s children with the deceased will benefit to the same extent as the children born out of the 5;11 marriage.
That later union is at law, a nullity. It does not exist for purposes of inheritance. But as has already been indicated, the children from that marriage do not lose out on account of having been born out of an invalid marriage. It is only their mother who is disadvantaged. All the children of the deceased will benefit, including those he might have had with women he never married; otherwise called children born out of wedlock.
As regards a customary marriage that was contracted ahead of the 5;11, the lawmakers in their wisdom, sought to protect wives whose husbands subsequently married other women under 5;11 and then later on died. It was because of instances of elderly women who were left homeless after the deaths of their husbands.
It will be recalled that up to the mid-1990s, there were rampant cases of such widowed women who were thrown into the streets by their late husbands’ relatives.
In this regard, the writer could not resist the temptation of quoting the following passage by Her Ladyship, Mwayera J who wrote with her usual clarity in the case of Ndanga v Shambare & Others 2017(1)ZLR 154(H) 154, but precisely at page 157 where she said; “ . . . It should be noted that recognition of a customary law union or marriage as a valid marriage for inheritance purposes is to ensure that people living in such marriages are afforded equal treatment and protection by the law.”
The history leading to the enactment of Act 6 of 1997 recognising customary law unions for inheritance cannot be wished away. It was against the backdrop of spouses being driven out of their matrimonial homes after the demise of their spouses and being rendered not only homeless but propertyless.
It was noticed that the majority of the people in customary unions where the elderly first wives, who were brought risks by the enterprising young ladies more astute and alive to rights, and hence, would quickly tie the knot with the man under civil rites.
These circumstances depict a situation where the customary marriage preceded the civil marriage and as such there was the need for protection of such customarily married spouses.
In circumstances where the customary marriage/union preceded or predated the civil marriage, our courts have accommodated such marriages.
Tichawana Nyahuma is a lawyer and he writes in his personal capacity. Feedback [email protected]
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