The Sunday Mail
Slyvia Chirawu
Mary Magaka* was married to Bezerk Magaka* under the Customary Marriages Act for 15 years. By the time Bezerk’s died, they had four children.
Two years into their marriage, they bought a residential stand and built a beautiful 10-roomed house. Bezerk had insisted that the house be registered in his name only as per “our culture”. Mary loved Bezerk and had no objections.
After Bezerk’s death, and to Mary’s surprise, the immovable property had been bequeathed to Bezerk’s older brother.
Mary was heartbroken and she asked herself how this could be when she contributed substantially to acquisition of the stand and construction of the house.
For the first time she learnt that there is a legal phrase called freedom of testation.
This simply means that if an asset is registered in the sole name of someone, they can give it away through a will to whoever they so wish.
Mary had lived on the property for close to 11 years, this was the only home she knew and she could not fathom how Bezerk could just give it away just like that.
Arnold Benzi* was married to Chipo Benzi* under the Marriages Act (Chapter 5:11). He left Zimbabwe in 2006 to settle in the UK and Chipo followed five years later.
In those five years, he sent substantial amounts of money to buy a house. He was not really worried about whose name was on the house, all he cared for was that when he returned to Zimbabwe his family would have a roof.
He was shocked when Chipo passed away and he learnt she had registered the house in her name and had written a will giving it to her son from a previous marriage.
These situations are not uncommon.
Apart from literally disinheriting a surviving spouse by giving immovable property to someone else, wills contain clauses that if the testator (writer of the will) dies, should the surviving spouse re-marry, they should leave the matrimonial home.
Others “bequeath” wives to their brothers or uncles.
In one bizarre case, the testator wrote in his will that even if he died, he wished the immovable property forever remain registered in his name.
But what does the law state on what a testator can do with property they own?
The Wills Act allows a testator to write a will disposing of all or part of their property as they see fit. A will shall not be declared invalid simply because the testator has not given anything in the will to a parent, child, descendant or other relative; or because the testator has not mentioned a reason or reasons why she/he has not given the above-mentioned anything.
This is the heart of the law on wills and is called testate succession.
Interestingly, a surviving spouse (wife or husband) is not included in the list of persons whom the testator can afford not to bequeath anything to in the will.
This doctrine of freedom of testation is limited in the Wills Act which states that no provision, disposition or direction made by a testator in their will shall operate to vary or prejudice the right of any person to whom the testator was married to a share in the deceased’s estate or in the spouses joint estate in terms of any law governing the property rights of married persons; any person to receive any property, maintenance or benefit from the testator’s estate in terms of any law or any award or order of the court or any creditor owed money by the testator.
In respect of surviving spouses’ rights, two decisions have been made in the High Court of Zimbabwe.
In the estate of the late Wakapila v Matongo and others (HH/71/08), the issue at stake involved a house in Mufakose that had been acquired by a couple but only registered in the name of the husband.
The couple married in terms of a registered customary law marriage in 1973.
At the time of the application, the wife and husband were both late and the executors of their respective estates were at loggerheads.
The Mufakose house had been acquired by the husband from the City of Harare through a cession and was registered in his name only. He registered six children and his late wife as dependants.
In his will, the husband had bequeathed the Mufakose house to another (the case does not mention to who).
The court ruled that the wife had no rights at all to the Mufakose house at the time that the will was written and that her husband acted within his legal rights to give away the property to another.
The court considered the fact that if the common law allows a person who owns immovable property to dispose of it as they wish while still alive (another contentious issue as this can prejudice married women), then it would be absurd not to allow a person to dispose of their immovable property in a will as they wish.
The court actually stated that if property is registered in the name of one spouse, then the other has no rights at all and so cannot cry foul since nothing would have been taken away from them since the person in whose name the property is registered is the sole holder of the rights.
However, in a fairly recent High Court judgement in the case of Chiminya v Chiminya & Others (HH/272/15), the applicant in that matter was married to her late husband in terms of a registered customary law marriage in 1971.
The husband’s will gave immovable property in Highfield to his grandson.
The applicant challenged this will in the High Court arguing that the deceased had no legal right to bequeath the Highfield house to her exclusion.
The court considered the fact that the new Constitution did not permit discrimination in Section 56(3) on among other grounds those of custom, culture, sex, gender and marital status.
The arguments advanced on behalf of the decesased’s estate were to the effect that the applicant was customarily married to the deceased and that since he had not given the house to her, she was not entitled to it.
The court dismissed this argument as inconsistent with the new Constitution and emphatically stated that women, regardless of marital status, have a right to equal protection before the law and have the right to own property.
The honourable judge in the Chiminya case disagreed with the Wakapila decision in its consideration that the rights existing at the time of the time of the writing of the will are the ones to be considered.
The court came to a different conclusion based on its interpretation of the relevant legal section by ruling that no provision in a will should prejudice the rights of a surviving spouse.
In other words, the deceased did not have the legal right to write a will which disinherited his surviving spouse by giving the house to a grandchild.
The court also considered the fact that the African Charter on Human and People’s Rights on the Rights of Women In Africa (to which Zimbabwe is signatory) give widows the right to an equitable share of inheritance of the property of her husband and that a widow shall have the right to continue to live in the matrimonial home.
The Constitution calls upon the State to take appropriate measures to ensure that in the event of dissolution of a marriage, even through death, provision is made for the necessary protection of any children or spouses.
The fact that a house is registered in the name of someone should not be used as a factor to deny the surviving spouse that property.
In all probability, both contributed to the acquisition of the property and it may have been registered in one name for any reason.
It is ironic that women such as those in the case of Wakapila and Chiminya might come out better if they commence divorce proceedings because they will be entitled to a share of the property.
The fact that there are two seemingly different interpretations of the law is a clarion call for law reform so that the Wills Act makes it clear that a surviving spouse should not be disinherited, and this should extend to customary law unions that are not registered as customary law marriages.
Ghana has such a provision in its Constitution.
This will go a long way in ensuring that couples who have worked jointly can both benefit from their sweat.
Slyvia Chirawu is a lawyer, gender expert and activist. She is a Hubert Humphrey alumnus and teaches Family Law and the Law of Succession at the University of Zimbabwe. She writes in her personal capacity
*Names used are not real
