Inheritance in polygamy

This is a continuation from last week, where we discussed inheritance and deceased estates of people married under polygamy and customary law.

BY MIRIAM TOSE MAJOME

We discussed at length the importance of the family in certifying customary law marriages.

We discuss situations, where a man dies and leaves behind more than one widow and where the widows are all recognised as having been legally married.

Part IIIA of the Administration of Deceased Estates Act Chapter 6:01 prescribes the law on the estates of persons subject to customary law.

Inheritance plan

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The executor must draw up an inheritance plan.

The plan shows the net assets that are in the estate to be distributed after settling all the liabilities and claims against the estate.

The inheritance plan is drawn up for the benefit of the beneficiaries such as widows and children, who have a right to inherit from the estate.

It should include how the minor children will be maintained from the estate and from proceeds of sale of assets. Widows can also claim spousal maintenance from the estate.

Persons, who are entitled to be maintained by a deceased estate, are listed in terms of the Deceased Persons Family Maintenance Act Chapter 6:03.

The inheritance plan should be to the satisfaction of the Master, who is obliged to ensure that all the deceased person’s family members, who have a stake in the estate, were consulted when it was drawn up by the executor.

The inheritance plan should be drawn up by consensus as far as possible to minimise disputes over the administration and distribution of the estate.

The Master should endeavour to resolve any disputes and disagreements in the most expedient manner possible to the satisfaction of all the parties.

If consensus is not achieved, it invariably leads to protracted legal battles, where aggrieved parties sue the Master and executor and seek to nullify the administration of the estate.

The widows should be fully recognised as lawful wives in the inheritance plan and must inherit from the estate according to section 68.

Only the net proceeds of the estate are distributed.

Only what is left in the estate is distributed.

Sometimes, there is nothing left to distribute and the estate can actually be left in debt.

If a man leaves behind two or more widows and children, a third of his net estate will be divided between the surviving spouses. The senior wife gets two thirds, while the junior wives share the remaining third.

To simplify, if the net worth of the estate is $27 000, the estate is divided into three shares.

The wives will share $9 000 and the children will share $18 000 Of the $9 000, the senior wife gets $6 000, which is two thirds of the third and the junior wives share $3 000.

The remainder of the estate, $18 000, is divided equally among the children.

If there is only one child, the child will get the entire two thirds of the estate.

Sharing the matrimonial home

This is where the couple lived together during their marriage.

In a civil law marriage, the inheritance of the matrimonial home is fairly straightforward, as the surviving spouse inherits the house as her sole and exclusive property.

In a polygamous marriage, where the joint spouses all lived together under one roof, it is not so straightforward.

The man may or may not have lived with all his wives under one roof.

If each wife lived in her own house, she is given ownership of the household property that is in the house that she used. If it is practical, the widows are accorded lifetime usufructs over the different houses they each lived in at the time of the husband’s death.

This means the widows will be allowed to continue living in their houses and cannot be ejected by any of the other beneficiaries.

This is only practical where the houses concerned are owned by the estate.

It is not possible to give usufructs over rented properties, which belongs to other people.

Where the man lived under the same roof with all his wives, that one house is regarded as the matrimonial home of all the widows and so they must all share in it equally.

They could all continue living in the house together or the house can be sold and the proceeds shared equally among them. They would also share the household property equally.

Death of a woman

The deceased estates of women married in polygamous marriage are also distributed in terms of section 68(e).

Where she is survived by her husband he will get a third of her net estate and the remaining two thirds will be shared equally among her children.

The co-wives in the polygamous marriage are not entitled to inherit anything from deceased co-wives.

Customary law is only applied to persons married under customary law.

The determination of whether or not customary law applies is made by the Master in consideration of all the circumstances and the evidence laid out by the family.

This is the reason why the edict meeting is extremely important.

General law applies to persons married under the Marriage Act Chapter 5:11 or if they were married in a foreign country.

In most circumstances, black Zimbabweans marry under both customary law and general law — that is — Chapter 5:11.

A Chapter 5:11 marriage is almost always preceded by a traditional customary marriage, where lobola is paid although it is not a must.

In these cases, general law is used and customary law is used for persons, who do not go on to contract a Chapter 5.11 marriage later.

Real life challenges

Admittedly, the above narrative discusses the law prescribing inheritance and distribution of assets in polygamous marriages.

The law, as stated, posits a neat and tidy settlement, which is almost too perfect and different from what happens in real life.

There is a plethora of case law and judgments preceding from inheritance disputes particularly where customary law applies and polygamous marriages.

The courts are inundated with inheritance disputes.

Polygamous marriages tend to yield very serious posthumous conflicts, as opposing family members fight for power and shares in the deceased estate.

We will conclude this long and very broad topic next week by discussing the inheritance rights and status of children born out of wedlock.

We will also discuss the estates of unmarried people and people who die without children.