Chigwada vs Chigwada SC 188-20: An eye opener on Inheritance Issues and  Property Rights in a Civil Marriage.  

Are you aware that the case of Chigwada  vs Chigwada SC-188-20 has affirmed the position that a spouse can dispose his or her property through a will to anyone whom he or she desires. The previous position that a will can be regarded as invalid and set aside for the reason that the surviving spouse was disinherited is no longer valid.

The Supreme Court which is the highest court of the land(Appellate) made a pronouncement which has a great impact on property rights in a civil marriage, inheritance and estates planning. The new position of the law is that a will cannot be challenged on the basis that the testator(deceased) did not bequeath property to a surviving spouse. Put simply, a husband or wife is not entitled to dispose his or her estate through a will to his or her surviving spouse.

 The background and basis of this position of the law is the Married Person Property Act (Chapter 5:12) which provides that since 1929 all marriages in Zimbabwe are out of community of property. This means that parties (husband or wife) are legally entitled to own or dispose of property in their individual capacities. The doctrine of freedom of testation and the Constitutional right to property ownership enshrined in section 71(2) of the Constitution of Zimbabwe were also taken into consideration. In simpler terms a wife or husband can purchase property and own it in his /her own name and can also sale or dispose it through a will in his or her own capacity to whoever he / she desires.

Facts of the case

It is greatly important to outline the facts of the case which led to the pronouncement of the judgment by the Supreme Court. The deceased (Aaron Chigwada) in this case was married to the 1^st Respondent (Penelope Chigwada) in terms of the Marriage Act (Chapter 5:11). Before marrying 1^st Respondent the deceased was married to Appellant’s mother and they had divorced. The house in question was acquired by the deceased and his second wife (1^ST Respondent) and was registered in both their names hence each spouse owned half share of the beneficial interest in the house.

The deceased  had left a will and in that will he bequeathed his half share to his son from his previous marriage (Appellant ).The surviving spouse (Ist Respondent) dissatisfied with the will approached the High Court to have the will set aside for the reason that Appellant cannot inherit the half share because she is entitled to it as the surviving spouse .The High Court ruled in her favour but the Appellant appealed against the ruling and it was later overturned by the Supreme Court leading to the present positon of the law. When the appeal matter was heard 1^st Respondent had misconceptions about property rights in a civil marriage and she was basing her claims on religious teachings from her church about a civil marriage and inheritance. She was of the view that she had a right to the half share of her late husband because she was the surviving spouse and she was entitled to the share regardless of the will. This is the misconception that a lot of people have generally in relation to inheritance and matrimonial property where there is a will. This position is however different where there is no will as the surviving spouse will inherit the house (matrimonial home).

Effects of the new judgement

As earlier on highlighted the Supreme Court is the highest court of the land and its rulings are binding on all persons and institutions in Zimbabwe. It is now a settled position of the law of the land that a spouse can dispose his or her property by will (testamentary disposition) to whomever he or she chooses. A will cannot be set aside or invalidated on the grounds that the estate was not bequeathed to the surviving spouse. The previous rulings that a testator desiring to dispose his estate through a will is bound to bequeath that estate to his or her surviving spouse is inconsistent with the law and should not be followed. The other implication though not dealt with in the Chigwada case is that a spouse married out of community of property can deal with property in his or her individual name in any manner he or she desires even during the subsistence of a marriage without getting consent form the other party. This position is however different in a case of distribution of property upon a divorce where contribution of parties is considered. The position is different in relation to  inheritance and disposal of property through a will  as highlighted above.

Conclusion and Possible Way Forward

The new position has its effects and implications on property rights in marriages, inheritance and estates planning however this is now the settled position of law. It is one of our aims and objectives as a law firm to educate the general public and our valued clients on any changes in law. Marriages in Zimbabwe are out of community of property hence a spouse can acquire, own or dispose property in their individual capacity without the consent or knowledge of the other spouse. A spouse can bequeath property owned in his or her individual capacity through a will to anyone he or she chooses. A spouse is not automatically entitled to inherit a property owned by the deceased when he or she has left a will. A will cannot be set aside on the basis that the deceased (testator) did not bequeath property that he or she owned to his or her surviving spouse.

 What should you do to ensure that you protect that which you have worked for even if it is registered in your spouse’s name.

1. You need to understand that if there is bad blood between you and your spouse, your spouse can dispose of property to his or her siblings or relatives through a will and you will be surprised to know this at his or her death bed.
2. Let’s initiate discussions on property ownership at family level and come up with solutions that benefits our families and not third parties.