Daniel Nemukuyu Senior Court Reporter
A “husband snatcher’’, who engaged in a customary marriage with another woman’s man in the face of a monogamous civil marriage, yesterday lost a bid to grab the deceased’s estate after the High Court ruled her union illegal.
Ms Tedreta Ndanga customarily married the late Mr Linus Chirimba Shambare when the man had a subsisting union with Mrs Margaret Shambare in terms of the Civil Marriage Act (Chapter 5:11).
When Mr Shambare died in 2013, a wrangle ensued between the two women as they fought for the surviving spouse status with a view to take over the matrimonial properties in Hatfield, Harare and Seke.
Ms Ndanga was battling to grab both properties arguing that she was the one staying with the late husband at the time of death and that she was customarily married.
However, Mrs Shambare, who tied the knot with her late husband in 1963, argued that she had contributed to the acquisition of the properties in question and that her marriage was valid until 2013.
Ms Ndanga’s unregistered marriage to the late Mr Shambare took place in 1981.
High Court judge Justice Hlekani Mwayera analysed the submissions by the parties and held that the second union was illegal, hence Ms Ndanga had no right to benefit from the estate.
“It is a fact though that, that the association of plaintiff (Ms Ndanga) and the deceased who had not severed ties with the respondent was bigamous and illegal. The union cannot be legalised by the death of the late Shambare.
“The customary marriage was invalid since it came into being after a civil marriage and as such the applicant cannot be clothed as a surviving spouse.
“Given the unchallenged links and contribution of the surviving spouse and the deceased, and that, the property was acquired during the subsistence of the civil marriage, there is no legal justification for declaring the applicant the sole beneficiary of the Hatfield and Seke properties.
“She is not a surviving spouse and even if she stayed with the late Mr Shambare, she cannot seek to whisk away entitlements of other beneficiaries by seeking to be declared the sole beneficiary,” ruled Justice Mwayera.
Facts are that Mr Shambare married Mrs Shambare in 1963 under the Civil Marriage Act (Chapter 5:11) and the marriage subsisted until 2013 when the man died.
The estate was registered and the Master of High Court appointed an executor.
The executor recognised Mrs Shambare as the surviving spouse on the basis that the customary union was invalid.
Ms Ndanga then took the matter to the High Court seeking to be declared surviving spouse and the sole beneficiary of the estate. Zimbabwe recognises three types of marriages.
The first one is the civil marriage, which is monogamous. When one is in a civil marriage, he or she cannot enter any other new marriage.
The second type of marriage is a polygamous union under the African Marriages Act (Chapter 5:07).
Under the second type of marriage, parties are given room for other subsequent marriages.
The third one is the unregistered customary law marriage, which allows the parties to enter other unions.