Fidelis Munyoro Chief Court Reporter
A spouse married customarily cannot be disinherited from her late husband’s estate and has a right to inherit her matrimonial home, the High Court has ruled.
High Court Justice Priscillah Chigumba handed down the verdict recently in a case in which Mrs Venencia Chiminya and surviving spouse to the late Dennis Mhirimo Chiminya had approached the court seeking an order nullifying her late husband’s will. She won a partial nullfication, to the extent that she has inherited her matrimonial home.
The will had originally excluded her totally. At stake in the two-year dispute was the matrimonial home, 2421 Egypt, Highfield that Chiminya bequeathed to his grandson.
Ms Chiminya contested the will arguing that her late husband had no legal right to bequeath the matrimonial house to her exclusion.
Justice Priscillah Chigumba ruled that a spouse who had been married under customary law could not be disinherited through a will. It is already established law that spouses married in terms of the Marriages Act cannot lose the matrimonial home unless a will makes provision for suitable alternative housing.
She said the Constitution outlawed any legal provisions that are discriminatory of Section 56 (1) and (3) of the Zimbabwe Constitution Amendment (no. 20) Act 2013. The judge said the house was the only matrimonial home the surviving spouse was entitled to at law.
“Any disposition against that would be an illegality and also contrary to public policy,” said Justice Chigumba.
She then declared the provision of Chiminya’s will which disposes of house invalid and awarded it to Mrs Chiminya.
The judgment is a welcome development for many widows married under customary law where most immovable properties are registered in the name of the husband disregarding the wife’s contribution in the building of the property.
“The judgment correctly states that the new Constitution prohibits discrimination in section 56(3),” said Ms Sylvia Chirau, the director of Women in Law Southern Africa that brought the application on behalf of Mrs Chiminya.
“Disinheritance of a widow through a will is clearly an act of discrimination.”
Ms Chirau said the judgment correctly made reference to the African Charter on Human and People’s Rights on the Rights of Women in Africa which recognises the right of a widow to an equitable share of inheritance of her late husband.
Mrs Chiminya was customarily married to the late Dennis Mhirimo Chiminya on 24 August 1971 according to the marriage certificate.
Before his death Chiminya executed a will on November 5 2005.
After his death on June 11 June 2013 the will was subsequently registered and accepted by Master of the High Court Mr Eldard Mutasa.
Mr Mutasa directed that the estate be wound up in terms of the will.
Mrs Chiminya sought to challenge the validity of the will which excluded her as the surviving spouse.