People often put off making a will and eventually die without one, despite the fact that there are various organizations that advocate for people to execute wills. In the event that a person dies intestate (that is, without executing a will) his/her estate is administered in terms of the Administration of Estates Act [Chapter 6:01] and the Deceased Estates Succession Act [Chapter 6:02]. The Deceased Estates Succession Act provides that the heirs to a intestate deceased person’s estate are his/her children and his/her surviving spouse.

Where there is only one person who claims to be a surviving spouse, and where there are children born only from that monogamous marriage, usually no issues arise. Issues, however, arise when more than one person comes forward following the death of an individual and lays claim to being a surviving spouse. The claimant is then tasked with proving that they were indeed married to deceased, a task which in some circumstances can prove to be very difficult.

There are three recognized types of marriages in Zimbabwe, that is:-

  • Civil union marriages contracted in terms of the Marriage Act [Chapter 5:11].
  • Customary law marriages registered in terms of the Customary Marriages Act [Chapter 5:07]
  • Unregistered customary law unions, which are “marriages where all the traditional and cultural rites of marriage are followed” (Sibanda v Sibanda [2013] ZWBHC 86) but the marriage has not been formally registered. The accepted traditional rites mentioned above, may include a meeting of the respective families of the couple and the exchange of money, cattle or other valuables representing the payment of a bride price by the man’s family to the woman’s family (known in Shona and Ndebele as “roora” and “lobola” respectively). “The payment of lobola whether in full or upon agreed terms usually completes the validity of a customary union (see Sibanda (supra) as well as Chapendama v Chapendama 1998 (2) ZLR 18).

Any person who was married to the deceased at the time of his/her demise in terms of any of the three marital structures is prima facie the deceased’s surviving spouse. The enquiry, however, does not end there.

A marriage contracted in terms of the Marriage Act (which is commonly referred to as “a Chapter 5:11 Marriage” or a “civil union”), is monogamous in nature and parties married under this type of marriage cannot enter into another valid marriage, be it a civil or customary, during the subsistence of the marriage. If the deceased had entered into another marriage(s) without dissolving the first civil union, the subsequent marriages are deemed null and void. The civil union spouse will be deemed the sole surviving spouse and will inherit from the deceased to the exclusion of all other spouses.

The above position remains the case even if the civilly married parties were separated (but not divorced) and living independent lives at the time of the demise of the deceased as can be seen from the case of Mazarura v Kativhu [2014] ZWHHC 287 where the court held the following;

“The defendant remains the surviving spouse… The fact that the plaintiff made it impossible for her to attend to her ailing husband or that she did not attend to the husband because of differences does not remove the status as a surviving spouse”.

Should a person who is already married in terms of the customary law subsequently enter into a civil marriage with a third party, the latter is regarded as a valid marriage for inheritance purposes but the civil marriage shall be regarded as a customary law marriage (See Gwatidzo v Masukusa 2000(2) ZLR 410(H), Chinho v Chinho and Others [2006] ZWHHC 99). In such circumstances, the civil union spouse and the customary law union spouse will both be deemed to be the deceased’s surviving spouses with equal entitlement to the deceased’s estate and the administration of the estate will be dealt with under customary law. Section 68(4) of the Administration of Estates Act provides that:-

“(4) A marriage contracted according to the Marriage Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse shall be regarded as a valid marriage for the purposes of this part even if, when it was contracted, either of the parties was married to someone else in accordance with customary law, whether or not that customary law-marriage was solemnized in terms of the Customary Marriage Act [Chapter 5:11]

Provided that, for the purposes of this part, the first mentioned marriage shall be regarded as a customary-law marriage” (emphasis added).

Section 3 of the Customary Marriages Act provides that a customary union is deemed valid only if it is solemnized in terms of the said Act. Under the aforementioned section, only a spouse whose customary law marriage is registered is deemed to be a surviving spouse. (See Katiyo v Standard Chartered Zimbabwe Pension Fund 1994 (1) ZLR 225(H)).

The provision, taken on its own, would be clearly unfair as it would nullify a majority number of the marriages currently in existence (unregistered customary marriages) and unfairly discriminates against persons who are parties to such marriages. To address this anomaly, the Administration of Estates Act was amended by the Administration of Estates Amendment Act Number 6 of 1997, which amendment validated unregistered customary law marriages for inheritance purposes.

Section 68(3) of the Administration of Estates Act now provides as follows:

“(3) A marriage contracted according to customary law shall be regarded as a valid marriage for the purposes of this part not withstanding that it has not been solemnized in terms of the Customary Marriages Act [Chapter 5:07], and any reference in this part to a spouse shall be construed accordingly.

Provided that such a marriage shall not be regarded as valid for the purposes of this part if, when it was contracted, either of the parties was married to someone else in accordance with the Marriages Act [Chapter 5:11] or the law of a foreign country under which persons are not permitted to have more than one spouse.”

In conclusion, in terms of the inheritance laws of Zimbabwe, the principles outlined below will apply if a person dies intestate:-

  • All marriages under customary law (whether registered or unregistered) are deemed to be valid for the purposes of inheritance, save where the deceased had an existing marriage in terms of the Marriage Act at the time he or she purported to enter into another marriage. In that case, the spouse to the civil union would be deemed the sole surviving spouse.
  • On the death of a party to an unregistered customary law union, the spouse is deemed to be the sole surviving spouse only if the deceased had no other registered marriages, either in terms of customary law or under the Marriage Act.
  • If the deceased had entered into other customary law marriages, (whether registered or unregistered) and thereafter purported to contract a Chapter 5:11 marriage, then all the surviving spouses inherit under the dictates of customary law.

Gloria T Nyamayi

Partner

Litigation & General Work Department

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