On Tuesday, High Court judge Justice Hlekani Mwayera ruled that children born out of wedlock are entitled to the same rights to their parents’ estate and property should be shared equally among the children.
The ruling comes at a time when, for many years, children born out of wedlock had been locked out of the fathers’ estate as vindictive spouses sought to settle scores with the other woman.
But the ruling is a welcome development as it acknowledges that children should not be forced to pay for the sins of their fathers.
The court’s decision, however, may not sit well with women who would have laboured together with their husbands in amassing property which may eventually be registered in the husband’s name and may end up being enjoyed by his children born out of wedlock.
Today, most women contribute in the generation of incomes which may be used to purchase properties of value and to say that the children that have been born out of wedlock share equally with those of the woman who is legally married can be deemed unfair.
Elsewhere in this issue, civil society groups support Justice Mwayera’s interpretation of the law in this regard,
The ruling may force women to start acquiring properties separately with the aim of safeguarding their investments.
This means, therefore that modern women need to think out of the box. They have to invest separately and sit down and discuss with their spouses on their individual investments. Women need to know more about investments and understand issues lest they end up losing.
The judge said excluding children born out of wedlock in inheritance matters was discriminatory and in breach of the Constitution.
The judge said the surviving spouse was entitled to inherit the matrimonial home that the couple used to stay at the time of death. Mwayera said the other properties must be shared among all the beneficiaries as they fall under the free residue of the estate.
A legally married spouse is entitled to share in the joint estate and further share in free residue while descendants, parents, brothers or sisters are also entitled to a share in the free residue.
Justice Mwayera’s judgment was based on section 56(3) of the Constitution of Zimbabwe which states that every person has the right not to be treated in an unfair manner on grounds such as nationality, colour, tribe, place, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability and economic or social status.
She said these rights have always been in the Constitution, the old Act in 1979 and have been more pronounced by wording in the new Constitution Amendment No 20 Act 2013.