Hubby’s death can’t legitimise illegal marriage

Slyvia Chirawu-Mugomba Correspondent
Betty Miziki (not real name) sits among mourners at the funeral of her husband Charles Miziki (also not his real name) who died of heart attack at the age of 60.

Had it not been for a cousin of Charles who informed her of the death and encouraged her to attend the funeral, she might not have had the courage to.

She recalls the day Charles asked for her hand in marriage many years ago.

Her dream had been to train as a nurse, but that evaporated the moment she met Charles.

He swept her off her feet.

They were married in church on a bright, sunny Saturday.

Within six years, they had three children and in the next four years, the number grew to five.

Sometime before the birth of their last child, Charles told Betty he wanted a second wife.

He felt his business empire was growing and he needed a bigger family.

Betty did not object despite having a 5:11 Monogamous Marriage (then known as Chapter 37).

In one corner at the funeral sits Maidei Bozo (also not her real name).

Mourner-after-mourner comes to pay their condolences to her as she occupies her place as “Mai Miziki”.

She is consulted on decisions as to which funeral home is to conduct the funeral, the casket her husband should be buried in, where he should be buried and what clothes the corpse should wear.

Many years ago, she too got “married” to Charles under Customary Law when he paid lobola for her.

She and Charles had five children.

The estate has considerable assets in the form of farms, houses, cars, cash and investments.

Speakers shower Maidei with praises for the role she played in Charles’ life. Nothing is said about Betty, who for many years stayed in one of the houses minus Charles, who visited her not more than three times a year.

Betty reflects on how they acquired their first house and car and a shop and how she contributed to the acquisition of these assets.

Betty’s relatives are not called at any time at the funeral to speak about their son-in-law. The “honour” is given to Maidei’s family.

Maidei’s seemingly good luck in being accorded the respect of a widow comes to a shocking halt at an edict meeting at the Master’s Office.

She is informed at the meeting that the law does not recognise her Customary Marriage to Charles because it came after a subsisting 5:11 marriage.

According to the Administration of Estates Act, the law only recognises a situation where a man is married under customary law first (registered or unregistered) and without dissolving such marriage, he goes on to marry someone else under Chapter 5:11.

Ordinarily, this constitutes bigamy but for purposes of inheritance, both marriages will be recognised and the two wives will be treated as customary law wives.

As long as there is an undissolved Chapter 5:11 marriage however, anything that comes after is a legal nullity.

Despite having the support of the majority of Charles’s relatives, including the in-laws, this did not count for anything. The law recognised Betty as the surviving spouse.

She too was confused as she reflected on the day Charles paid lobola for her – it was a happy day, no one said anything about a Chapter 5:11 marriage.

No one talked about chapters at all. She was a good wife. She stood by Charles through thick and thin as she was expected to. She gave birth to children.

How then could the law treat her as if she was a nonentity?

The Miziki family was also confused. It knew Charles had two wives and that when he died, he was staying with Maidei with whom he had five children.

Betty was the first wife as far as they were concerned, but she and Charles were as good as divorced.

In the face of the legal reality on the status of Maidei’s marriage, how were they supposed to treat her?

Did this mean that she ceased being their daughter-in-law?

The law had dealt them a cruel blow.

The Charles, Betty and Maidei’s situation is not uncommon as confirmed in a recent High Court case of Ndanga vs Shambare and others.

The late Shambare was married to two wives, the first one under the Chapter 5:11 marriage in 1963 and the second one under an unregistered customary law union.

The executor recognised the Chapter 5:11 wife as the surviving spouse and not the second “wife”.

The latter approached the High Court seeking an order to be declared a spouse of the deceased and also to be declared the sole beneficiary of an immovable property.

The High Court dismissed her application and ruled that her “marriage” to the deceased, coming as it did after a subsisting Chapter 5:11 marriage, was illegal. The ruling is supported by the law as the provision in question is very clear.

Even if the second “wife” was married in terms of the Customary Marriages Act (Chapter 5:07), formerly chapter 238,) the legal position would still be the same — any “marriage” that comes after a subsisting Chapter 5:11 marriage is a legal nullity.

But can a woman in the position of Maidei be labelled a “husband snatcher?”

At law, by virtue of her status, she is deemed to have interfered in someone’s marriage and could have successfully been sued for adultery.

Betty could also have sought nullification of the Customary Law union between Maidei and Charles on the basis of bigamy.

Socially, however, the only “crime” that a woman in the position of Maidei seems to have committed is to get married to Charles under Customary Law when he was married in a monogamous marriage to Betty and such marriage had not been dissolved at the time of the Customary Law union.

Therein lie the contradictions between the law, morals and culture.

Many questions remain to be answered; did the second “wife” know about the first wife and the fact that there was an undissolved Chapter 5:11 marriage?

Did she know the legal implications of her customary law marriage?

These questions may never be answered truthfully given the fact that the “culprit” will be gone.

The duty of the courts is to interpret the law as was done in the Ndanga and Shambare case.

Many women in the position of Maidei mistakenly believe that their “marriage” which comes after a subsisting Chapter 5:11 marriage will miraculously be recognised for purposes of inheritance.

During the subsistence of such a marriage, the husband who will still be alive may even tell such a woman not to worry as the Chapter 5:11 is just a piece of paper.

After all, the man surmises, he paid lobola, his relatives recognise her as the man’s spouse and they all love and respect her.

The reality that the many years she thought she was a wife were a sham will only hit her when the man dies.

When the woman loses the status of a wife which she thought she had, it means she also cannot become a “beneficiary” to the estate of her late “husband”.

The reality is that she is not a surviving spouse as she had no ‘husband’ at law. Even if she stayed with that man for decades, even if she nursed him until he died, the reality is that as long as that man had a subsisting Chapter 5:11 marriage, all her efforts will come to nothing.

She may have the support of society and of relatives but at law this is inconsequential. She cannot even apply for maintenance from his deceased estate because she is not a surviving spouse.

In the words of one famous judge; “you cannot put something on nothing and expect it to stand”.

A husband’s death cannot legitimise an illegal marriage.

Moving forward, persons who enter into Chapter 5:11 marriages ought to be aware of the legal implications.

Time and again marriage officers have explained the legal implications of a Chapter 5:11, that it means one wife married to one husband at any given time.

In the event that such a marriage has broken down, the couple can seek a decree of divorce from the High Court.

Women too need to check the status of their husband-to-be from the Registrar of marriages so that they are not misled.

And perhaps it’s also time for marriage laws to be amended to deal with situations where a woman unknowingly “marries” a man who is in a monogamous marriage with someone else.

Whether she can be labelled a “husband” snatcher or not, does not change the fact that when it comes to matters of the heart, people lose judgment.

It could well be that there are women who innocently enter into bigamous relationships such as the one in the Shambare case and at death of the husband, they are left to pick up the pieces as they navigate a legal system that may be too complex for them to understand.

· Slyvia Chirawu-Mugomba is a lawyer and an expert in family law and the law of succession. She writes in her personal capacity

You Might Also Like

Comments

Take our Survey

We value your opinion! Take a moment to complete our survey