Women, Property And Inheritance

The Constitution contains a number of rights that have a bearing on women e.g. marriage rights (Section 78) and rights of women (Section 80). There are basically two marriages which are recognized in Zimbabwe, the marriage under the Marriage Act (Chapter 5:11) (which is monogamous), and the marriage under the Customary Marriages Act (Chapter 5:07) which is potentially polygamous.

According to the Married Persons Property Act (Chapter 5:12), the community of property is excluded from all marriages that were entered into after 1st January, 1929 except where there is an agreement to the contrary. This simply means marriages in Zimbabwe are out of community of property as opposed to in community of property.  Each of the parties to a marriage can own property in their name. The effect is that a spouse can lawfully buy and dispose property without the knowledge and consentof the other. This mainly affects women as property is usually registered inthe name of the husband.

The parties to a marriage can expressly agree that their marriage will be in marriage rights community of property through an instrument which should two marriages with the registrar of deeds. In this case the property is jointly owned.

Immovable property can be registered in the joint names of the parties. Where this is the case generally the law recognizes that each spouse holds an undivided half share in the property. This can be another way the rights of a spouse to a property are secured. Spouses can also consider registering a family trust where both are trustees and the children born of the marriage being the beneficiaries. Their property is then registered in the name of the trust.

Upon the death of a spouse, the surviving spouse is entitled to inherit the deceased’s property. The law recognizes a person in a customary union as a spouse for the purposes of inheritance. A person who is not recognized as a spouse by the law cannot inherit from the deceased’s estate. However, the children born from an adulterous marriage are regarded as beneficiaries to the estate of the late.

 Where a person is married in terms of the Marriage Act, any subsequent ‘marriage’ is invalid. It is therefore not advisable for a woman to enter into a customary law union where there is two marriages subsisting monogamous marriage. A customary union can only be valid for the purposes of estate succession where it precedes the monogamous marriage.

Upon the death of a person, any person can approach the Master’s office to have the estate registered. The Master will convene a meeting for the appointment of an executor and will explain the procedures to be followed. It is advisable that a person draws a Will.  The Will can be deposited with the Master of High Court. In terms of Wills Act every person over the age of 16 can make a Will unless he/she is mentally incapable. Each page of the Will should be signed by the testator and by two witnesses. A Will becomes void upon subsequent marriage of testator.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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