Marriage and its implications on inheritance
WLSA has been in existence for the past 24 years. We have handled and continue handling many cases on inheritance. We have also noted an increase in inheritance disputes due to the increase in deaths brought about by HIV/Aids. The case below is one of the thousands of cases that we have dealt with. It illustrates the complexities in our lives especially in relation to marriages.
B (male) paid lobola for A in 1960 under an unregistered customary law union. The union was blessed with five children, three girls and two boys. B acquired a stand in the High density area of Glen View in Harare in 1981. A was a hard working woman and spent time in the rural areas, farming and selling the produce. She also went to neighbouring countries to purchase goods for re-sale. Most of the money generated by A was used to purchase building materials and develop the residential stand in Glen View until it became a complete nine roomed house. A’s desire was to wed in church with B but the latter adamantly refused. In 2001, B met a woman C and started an affair with her. In 2002 B paid lobola for C. She constantly nagged B for a wedding until B gave in. In the same year, B advised A that she should stay permanently in the rural home in Wedza. In 2003, B and C unknown to A “married” at the Magistrate Court in terms of Chapter 5:11 marriage. A only learnt with shock the existence of the marriage on the 1st of June 2007 when B passed away.
Legally, an unregistered customary law union or a registered customary law marriage cannot exist side by side with a monogamous Chapter 5:11 marriage. From research conducted by WLSA, the situation enunciated above is not uncommon. As a result of intense advocacy, the Administration of Estates Amendment Act that started operating on the 1st of November 1997 provides that if a man is married in a registered customary law marriage or an unregistered customary law union but goes on to marry another wife in a Chapter 5:11 without dissolving the marriage or union, both the Chapter 5:11 marriage and the customary marriage or unregistered customary law union will be recognised as and treated as customary law marriages for purposes of inheritance only. A will be considered as the first wife and C the second wife. A and C will be entitled to inherit the house that they each stayed in at the time of B’s death, the household goods and contents and for the remainder they share with the children. A as the senior wife will get more from this remainder.
While WLSA applauds this law, research and other evidence has revealed that women in the situation of A who may have contributed to the acquisition and building of the house will often lose out since wives in the situation of C above who may not have contributed anything will inherit the house by virtue of the fact that they were living in the urban home at the time of B’s death.
On the other hand, if A and B had a registered chapter 5:11 marriage that allows a man to have only one wife at any given time and B goes on to marry C in an unregistered customary law union or registered customary law marriage without dissolving his marriage with A, if B dies, C will not be entitled to inherit anything from B’s estate.
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