Inheritance in polygamy

By The Standard | Sep. 30, 2017 | 6 Min read

TODAY’S topic is introductory and will cover some of the basic laws and issues that pertain to inheritance in polygamous marriages.

BY MIRIAM TOSE MAJOME

Polygamy is legal in Zimbabwe and is very common. Polygamous marriages are a part of the social fabric because customary law unions contracted by the majority of black Zimbabweans allow men to marry more than one wife.

Many men take up the privilege accorded them by customary law with great enthusiasm even though it gets quite messy.

The number of wives a man marries has a great bearing on inheritance and administration of his estate when he dies.

More often than not the estates of men who leave more than one widow are riddled with controversy and hot disputes.

We are not even talking about extra-marital affairs and the children born of such unions. We discuss the inheritance rights and status of children born out of wedlock in a subsequent issue.

In the following weeks we will also look at the estates of unmarried people who die without spouses or offspring as this is a much neglected and cloudy area.

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This week and the next, we will focus on the multiple widows’ scenario and the inheritance issues unique to polygamous marriages.

So special is this area of law that Part 11A of the Administration of Deceased Estates Act is dedicated to the estates of persons subject to Customary Law. The area is quite vast that only a few basics can be covered.

Validity of customary law marriages

Customary law marriages are contracted exclusively between the woman and man’s families. Lobola or a part of it or a recognisable form of it is paid to the woman’s father or any of her other male paternal relatives in the absence of her father.

Some people register their marriages at magistrates’ courts in terms of the Customary Marriages Act Chapter 5:07, but some do not and those are unregistered marriages albeit valid.

Unregistered customary marriages are ordinarily recognised and acknowledged within the two different families of the man and the woman. It is a little known fact that in terms of the law, all customary marriages have to be registered.

However, scant regard is paid to this because there is no compulsion by any government authority to register customary marriages or penalties imposed for not registering them.

Customary marriages are regarded as valid marriages for the purposes of inheritance in terms of the section of the Administration of Deceased Estates Act Chapter 6: 01 that deals with inheritance under customary law marriages.

The section does not apply to people married in terms of the Marriages Act Chapter 5:11, which were discussed last week.

Validity of preceding customary marriages

Questions are often asked about the validity of customary marriages which were contracted before a man marries another woman under the Marriages Act Chapter 5:11, which allows only one wife.

Does such a marriage automatically invalidate the existing customary law marriage? The answer is no. If anything, the more recent civil exclusive marriage could be challenged and voided or annulled.

Contracting such a civil marriage while a customary law marriage subsists does not invalidate the first marriage contracted under customary law.

A typical Zimbabwean scenario is where a man abandons his first wife for whom he paid lobola and sometime later, marries another woman and has a civil marriage in church or court with her.

The question is what happens to the first wife who does not have the protection of a Chapter 5:11 marriage, which seems stronger and more valid because it can be proved on the papers?

In fact, often, the customary law wife has no papers at all to prove her marriage. She fears being left out when the man dies and that his entire estate will be given to the civil law widow because she has no papers to prove her own marriage.

However, that is the purpose of the section of the Act, which is established to recognise the validity of customary law marriages.

If there was a pre-existing and subsisting customary law marriage before the later civil law marriage was contracted the pre-existing customary law marriage is recognised as valid.

Proof of customary law marriages

Existence of a customary law marriage is proved in two ways. This is so as to establish the marital status of the deceased person and the widow or widows left behind to ascertain if they truly were married under customary law.

A marriage certificate is given for registered customary law marriages by the magistrates’ court. In a polygamous or customary law marriage, there are often disputes as to the validity or existence of marriages between the deceased and the women claiming to have been married by him.

The relationships between the parties need to be ironed out in order to establish the real legal position and entitlement of each party in the estate.

We already mentioned that customary law marriages are completely reliant on recognition by the families.

The evidence of the existence of a customary law marriage is purely by recognition, acknowledgment and admission by family members preferably from both family sides.

For someone to be recognised as a customary law wife, at least some of her family members have to admit to having received lobola for her or at least some portion or some form of it.

The groom’s family may also admit that some lobola was paid by their dead relative for the widow claiming that there was a marriage.

If no convincing admission or concession takes place from either side, then there is no convincing proof of a customary marriage having been contracted.

The couple may even have lived together for many years and may even have had children and grandchildren together, but in the absence of recognition and admission by the families of lobola having been paid or even a portion of it will not be deemed as a valid customary marriage.

In Shona, it is called kubika mapoto and the status of a wife is not conferred on the woman no matter how long she may have lived with the man even if she had children and grandchildren with him, she will be at the status of a live-in girlfriend no matter her age.

The Master has to be convinced of the marriage status of the deceased and the widows claiming marriage, The Master has to be completely convinced that there was a valid marriage between the deceased and the surviving women.

Appointing an Executor

An edict meeting is held to appoint an executor. The duties of an executor were outlined in the previous issues. When a man married under customary law dies, the Master invites his closest surviving available relatives for the purposes of appointing an executor of the deceased estate.

At the edict meeting, the family has to select an executor between themselves who will take charge of the deceased’s estate and distribute it.

The executor deals with all the affairs of the deceased person. The executor will deal with and settle debts and pursue debts owed to the deceased by creditors who owed him money or other obligations.

The executor has the duty to safeguard the interests of the deceased estate before it is distributed.

In Shona, distribution is called kugova nhumbi dzemufi.

If the relatives fail to agree about who to appoint as the executor, the Master has powers to appoint someone from either within the family or a neutral person. Heirs to a deceased estate can be appointed as executors. Heirs are relatives who are eligible to inherit from the deceased estate.

In terms of Section 68C of the Act the heir or heirs inherit the deceased person’s name any traditional articles which traditionally pass upon a person’s death.

The topic is quite broad so next week we will discuss the legal aspects of the distribution of assets to the surviving recognised spouses.

So be sure to read NewsDay Weekender again next Saturday for this.