By Danai Chirawu
The process of writing a will, which is a person’s testament of how they intend to have their assets distributed at death has a bearing on those who are left behind, particularly the spouse and the children.
The person who writes this testament has the freedom to distribute such assets in whatever way they please subject to the provisions of the Wills Act (Chapter 6:06).
There is a link between the laws of succession and marriage laws stemming from the many duties and obligations that accrue on both spouses during the subsistence of the marriage. There is a comprehensive intestate succession law framework which deals with distribution of the deceased’s estate where a spouse dies without drafting a will and it prioritises the surviving spouse and the children. The same conclusion cannot be made for testate succession because a person is free to prioritise whomsoever they wish to inherit from their estate.
The Wills Act in Section 5(3) (a) has attempted to offer a lifeline for spouses by stating that the contents of the will drafted by a married person should not prejudice the right of the surviving spouse to benefit from the deceased estate. This provision may be interpreted to mean that a spouse by virtue of marriage is entitled to inherit from the deceased’s estate regardless of whether or not a will exists (my emphasis). The problem which has plagued the courts for many years is in the interpretation of this same provision because on one end is the equality perspective which argues that one should not disinherit a spouse in the will because of the contributions made in the acquisition and maintenance of the assets during the subsistence of the marriage.
Contrary to that interpretation is the understanding that a person who writes the will has “freedom of testation” which gives them the independence to choose who inherits from their estate and who does not. In some court judgments, some judges have argued that if a spouse who is registered as the owner of any property can, during their lifetime dispose of property and deal with it any way they want then the same liberty must be extended to that spouse at death.
Looking at this background it is necessary to draw the correlation between the amendments being made in the marriage framework and the current provisions of testate succession. The starting point therefore is the premise that all marriages are out of community of property which means that unless the property is jointly registered, it belongs only to the person in whose name the title is registered. The property rights of the owner of the title therefore allow that person to sell, lease, hypothecate and do anything else with that property without any hindrance or influence from their spouse. In the same breath, the Constitution in Section 26 provides that there must be equality of rights and obligations of spouses during the marriage and at dissolution.
The same provision can be found in the current draft Marriage Bill, however, there is no proper definition in the proposed Bill of what that entails. It is merely a principle which has not been adequately defined and interpreted by the law maker and based off the conflicting judgments being produced by the bench regarding whether or not a spouse can be disinherited in a will, such a vague provision will continue to be subject to the Judges diverse and differing interpretations much to the detriment of many women who are often on the receiving end of disinheritance.
In the formulation of progressive marriage laws, the law maker must be guided by the history of property acquisition in Zimbabwe. Currently more men have registered title in immoveable property such as houses and companies than women. For many years, women were considered to be perpetual minors incapable of owning land or administering their own affairs and this contributes directly to the reasons why more men own more property than women.
There are also cultural and societal norms which for many years have hindered women from owning property and have it registered in their names. If the property rights of spouses during the subsistence of the marriage are not defined, there continues to be a risk that women who have contributed to the acquisition and upkeep of property registered solely in their husband’s names can be disinherited through a will and they will be at the mercy of the judge’s understanding of freedom of testation should they choose to contest the will.
While the draft Marriage Bill provides that all marriages are equal and have equal protection of law, it introduces civil partnerships in Section 40, which pertains to people who have been cohabiting and acquiring property under the same roof. The specific provisions pertaining to civil partnership are more centralised upon property rights at the dissolution of the civil partnership yet the same protection is not afforded to people in these partnerships upon death. If indeed the rationale of making such a provision is to protect the property rights of people who are cohabiting then surely the protection should not be limited to instances of separation without formulating laws on what happens when one of them dies.
In order for the marriage laws amendment process to truly be progressive and reformatory there must be a concurrent amendment to the laws of succession in Zimbabwe. Without focusing on the rights of spouses during the subsistence of the marriage, at dissolution and at death, the gaps that exist within these laws will continue to exist. The country risk yet another decade of stagnation and the courts will continue to be limited to the interpretation of vague and incomplete laws and policies.
This process is leaving the law of inheritance behind yet there is an untapped opportunity to harmonise these two intertwined areas of law. In order to fully promote change within both these areas of law, property rights must be included in the Marriage Bill. The laws of marriage and the laws of inheritance should not be mutually exclusive and to avoid repeating this cycle only a conclusive overhaul of the laws will suffice.
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