PROPERTY AND INHERITANCE RIGHTS NETWORK MEETING
WLSA Zimbabwe held its first property and inheritance rights meeting for the year 2011 on the
6th of May 2011.All ten invited organizations attended the meeting namely The Master Office of
the High Court and other Civil Society Organizations working on property and inheritance rights
,HIV and Aids. The specific objective of the meeting was to establish recommendations for the
Law Development Commission on the gaps that exist in the current inheritance laws .The areas
discussed are illustrated below.
TALKING POINTS: On areas that need Law Reform
What should happen in a polygamous marriage if the husband dies and lives two wives with
the first one staying in the rural areas and the latter in the urban?
It was stated that our laws provides that the spouses will continue to stay where they have
been staying at the time of the death of their husband.
The problem was what would happen to the first rural based wife when in actual fact she was
responsible or took part in acquiring the urban house- which the latter wife was staying at the
time of the husband’s death when in actual fact she did not make any contributions towards
acquiring the house.
The Master of the High Court suggested that there has to be some discretional power given to
the Master or Executor to decide on such issues. He went on to say there has to be
consideration to certain circumstances surrounding each case. An example was to look at how
the property was acquired and why a party may be interested in getting a property – He said
this may help in justifying who has to be awarded the property concerned.
What should happen to children of the original marriage when the surviving spouse
remarries?
It was discovered that there are incidents where for example a widow, who will be granted
ownership of the deceased’s estate, staying in her late husband’s matrimonial home with the
children, decides to remarry, and the children of the original marriage will be suffering.
Of concern was what is the remedy for the children considering that there is now a new spouse
to their late father’s house or property and this new spouse may not care about the children at
all- should the law say children have to inherit their parent’s estate with the exclusion of the
surviving spouse?
This issue raised a lot of debate from the participants. Some were of the view that the spouse
should be excluded. However, at the same time it was noted that this would cause a clash on
women’s and children’s rights- there has to be a balance to these two conflicting rights.
The other opinion was that if the surviving spouse remarries, she has to concentrate on her
new marriage and she losses her right of inheritance to the children of the original marriage.
This opinion received a lot of support by the participants.
Most participants were of the view that the surviving spouse should get a right of usufruct only
and the children maintain ownership of the house. Such right of usufruct falls away upon
remarriage and death.
Should the mother and children share the house and household goods equally?
It was noted that children are more vulnerable especially in the event that the surviving spouse
remarries, they may end up being evicted from the house, thus some suggested the estate has
to be distributed equally.
Nevertheless, it was also noted that it is not always the case that children are minors. How do
we secure that the children would not sell the house or estate at the expense of the surviving
spouse?
Suggestions were that, for major children it would be unfair for them to inherit if it is the case
of equal distribution, but the minors should benefit. However, participants seemed not to agree
to this with others saying each case should be decided upon its own merits. It was also
suggested that the Master should have discretion in addressing these issues. At the same time
some were of the view that discretion may also be problematic saying that it is subjective, for
example if there is corruption going on , there has to be a guiding rule.
It was suggested that, the spouse should have the rights of usufruct until she dies or remarries.
It was further suggested that under circumstances where the surviving spouse remarries and
the new spouse also make contributions to the estate or any property, that contribution should
be considered and this has to apply to all marriage types. A lso, if the second marriage has
children as well, those children have equal rights.
What should be done to Unregistered Customary Law Unions?
It was realized that it is very difficult to prove such a marriage to such an extent that some
wives would be referred to as ‘girlfriends’, when in actual fact lobola would have been paid.
The question was does it mean that the second wife who has an unregistered customary law
union cannot inherit anything due to the fact that the first wife has a marriage certificate?
The position of the law states that yes the second wife cannot inherit .However this situation is
causing a lot of poverty on these women leading to them engaging in risk behavior hence the
possibility of contracting HIV.
Some participants suggested that it will be proper if the courts consider the time period that
the parties stayed together, for example two year period can justify existence of a marriage.
Further, if it can be proved that there were some lobola negotiations that took place, even if
the amount would not have been paid in full that alone justifies an existence of a marriage.
Moreover, it was suggested that for purposes of inheritance no marriage was better than the
other rather all marriages are valid .Hence, participants felt marriages should be harmonized to
avoid the discrepancies.
What can be done for women to inherit Communal land?
The question was, is it practical for women to inherit communal lands taking into consideration
that currently under customary law such land belongs to the State and thus is administered by
the traditional leaders namely Headmen and Chiefs living in that area. Thus they would govern
the use of such lands according to their local laws. The issue arising was that, what should be
done considering the fact that women stay in the rural areas, and they need that land for
survival even after their husbands die. How can it be made possible for the women and children
to inherit communal lands?
It was suggested that there has to be a clause that encompasses the surviving spouse (woman),
to have the rights to continue using that land like she used to do when her husband was alive.
Further Traditional Leaders should be sensitized about the current laws on inheritance and
how they are gender sensitive so as to advocate for inclusion of communal land in inheritance
laws or the amendment of the communal lands Act to allow surviving spouses to inherit the
land.
What can be done to ensure that the surviving spouse is not disinherited in a Will?
There is need to include a provision that protects the surviving spouse and children of the
deceased like the position of the law under the administration of estates. They also stated that
there has to be certain standards laid down by law that state what a valid will should contain
.This should include the aspect of not disinheriting primary beneficiaries.
Property grabbing cases
Several participants expressed their concern on the police lack of awareness on the deceased
Person Family Maintenance Act in which property grabbing is a crime that requires the police to
act fast by arresting the perpetrator and bringing the matter before the court. It was suggested
that the Masters Office should seek approval for the training of the Police in terms of this law.
WLSA Zimbabwe invites more ideas to address these questions from other regional network
members especially those with laws in place that already solve these issues stated above .For
comments please send to dorcas@wlsazim.co.zw, www.wlsazim.co.zw