Inheritance in polygamy – NewsDay Zimbabwe

Today’s topic is an introduction and will cover some of the basic laws and issues relating to inheritance in polygamous marriages.

BY MIRIAM TOSE MAJOME

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

Many men accept the privilege granted to them by customary law with great enthusiasm, even if it becomes quite complicated.

The number of wives a man marries has a great influence on the 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 hot controversies and conflicts.

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

In the following weeks, we will also be looking at estates of unmarried people who die without a spouse or offspring, as this is a very neglected and cloudy area.

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

This area of ​​law is so specific that Part 11A of the Administration of Deceased Estates Act is devoted to estates of persons subject to customary law. The area is quite large and only a few basics can be covered.

Validity of customary law marriages

Customary marriages are contracted exclusively between the families of the woman and the man. The lobola or a part thereof or a recognizable form thereof is paid to the father of the woman or to one of her other male paternal relatives in the absence of her father.

Some people register their marriages with the courts of first instance in accordance with Chapter 5:07 of the Customary Marriage Act, but others do not and they are unregistered, albeit valid, marriages.

Customary unregistered marriages are generally recognized and recognized within the two different families of men and women. It is a little known fact that in terms of law all customary marriages must be registered.

However, little attention is paid to this as no government authority is compelled to register customary marriages or penalties imposed for not registering them.

Customary marriages are considered valid marriages for the purposes of inheritance within the meaning of the section of the Administration of Deceased Estates Act, Chapter 6:01, which deals with inheritance in customary law marriages. .

This article does not apply to people married under Chapter 5:11 of the Marriage Act, which was discussed last week.

Validity of previous customary marriages

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

Does such a marriage automatically invalidate the existing customary law marriage? The answer is no. On the contrary, the most recent exclusive civil marriage could be contested and annulled or annulled.

The fact of 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 one where a man abandons his first wife for whom he paid the lobola and, some time later, marries another woman and marries her civilly in church or court.

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

In fact, often the customary wife does not have any paperwork to prove her marriage. She fears that she will be left out when the man dies and that her entire estate will be given to the civil law widow because she has no papers to prove her own marriage.

However, this is the purpose of the section of the law, which is established to recognize the validity of customary law marriages.

If there was a pre-existing and subsisting customary law marriage before the subsequent civil law marriage was entered into, the pre-existing customary law marriage is recognized as valid.

Proof of customary law marriages

The existence of a customary law marriage is proven in two ways. This is in order to establish the marital status of the deceased person and of the left behind widow (s) in order to verify whether they were really married under customary law.

A marriage certificate is issued for marriages registered under customary law by the district court. In a polygamous or customary marriage, there are often disputes as to the validity or existence of marriages between the deceased and the women who claim to have been married by him.

The relations between the parties must be smoothed out in order to establish the actual legal situation and the rights of each party in the estate.

We have already mentioned that customary law marriages depend entirely on recognition by families.

The proof of the existence of a customary law marriage rests only on the recognition, recognition and admission of family members, preferably on both sides of the family.

For a person to be recognized as a customary wife, at least some of her family must admit to having received lobola for her or at least some or some form of it.

The groom’s family can also admit that part of the lobola was paid by their deceased relative for the widow claiming there was a marriage.

If no convincing admissions or concessions are made on either side, then there is no convincing evidence that a customary marriage has been entered into.

The couple may even have lived together for many years and may even have had children and grandchildren together, but without recognition and admission by families of lobola having been paid or even part of that – this will not be considered a valid custom. wedding.

In Shona it is called kubika mapoto and the wife status is not conferred on the woman no matter how long she may have lived with the man even though she had children and grandchildren with him, she will have the status of alive – as a girlfriend regardless of her age.

The Master must be convinced of the marital status of the deceased and of the widows who request marriage. The Master must be completely convinced that there was a valid marriage between the deceased and the surviving women.

Appointment of an executor

An edict meeting is organized to appoint an executor. The functions of an executor have been described in previous issues.
When a man married under customary law dies, the Master invites his surviving available next of kin for the purpose of appointing an executor of the deceased estate.

At the meeting of the decree, the family must choose among themselves an executor who will take charge of the deceased’s estate and distribute it.

The executor takes care of all the affairs of the deceased. The executor will process and settle debts and pursue debts owed to the deceased by creditors who owed them money or other obligations.

The executor has the duty to safeguard the interests of the deceased estate before its distribution.

In Shona, the distribution is called kugova nhumbi dzemufi.

If the parents cannot agree on who to appoint as executor, the Master has the power to appoint a relative or a neutral person. The heirs of a deceased estate can be appointed executors. Heirs are parents entitled to inherit the deceased estate.

According to article 68C of the law, the heir or heirs inherit from the name of the deceased person all the traditional articles which are traditionally transmitted on the death of a person.

The subject being quite broad, we will discuss next week the legal aspects of the distribution of assets to recognized surviving spouses.

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

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