Small houses have no inheritance rights

LEGALLY married women are entitled to movable and immovable properties registered in the name of their husband upon his death, including properties that could be in the possession of ‘small houses’ – legal experts have explained. Partners in civil partnerships, commonly referred to as small houses – enjoy sharing of properties upon separation or divorce, but such privileges do not extend beyond the grave.

In Zimbabwe, generally, in the event of a husband’s death, the legal framework for inheritance is guided by the type of marriage and whether a will exists.

A small house has very limited rights compared to a legal wife, given that a wife’s property rights are determined by the type of marriage, and they generally prevail over a ‘small house’, or a party to an extramarital affair.

However, if there is a will, a deceased person can outline the distribution of their assets.

An executor, appointed by the Master of the High Court, is responsible for administering the estate and carrying out the will’s instructions.

In her presentation during the official launch of Together Help A Woman (THAW) organisation in Harare last Saturday, legal practitioner and women’s rights advocate, Ms Fadzai Ruzive, said:

“Women must know their rights in marital unions, be it customary marriage, civil partnership or civil marriage. Civil partnership is one of the common marital unions we have these days, and this normally works in terms of property sharing upon divorce or separation. We are saying the other partner, mainly male, is in a monogamous marriage, and they have another relationship outside their marriage. In that relationship outside marriage, they amass property, in most cases, with the contribution of their partner outside marriage.

“Upon dissolution of that relationship, both parties are entitled to a share of the property. That is how it works pertaining to civil partnerships. They are not marriages, but these are relationships that exist outside one’s marriage. Even though the male partner is legally married, when they dissolve their civil partnership, both parties get their share since they contributed together. However, this does not extend beyond death. Civil partnership does not work when the male partner, in most cases, dies. The surviving spouse is the beneficiary of all the properties registered in the deceased’s name. There is no third party in this, including that other civil partner. She cannot claim anything.”

In an interview, another legal practitioner, Miss Dorothy Tinotenda Mutungura of Maunga Maanda and Associates, gave further clarity on the matter.

“Upon the death of a man legally married under the Marriage Act [Chapter 5:17], all property belonging to him, including any held or possessed by a person with whom he was in an extramarital relationship (commonly referred to as a “small house”) forms part of his deceased estate. Such property must be reported and distributed through the Master of the High Court in accordance with the Administration of Estates Act [Chapter 6:01],” said Miss Mutungura.

Miss Mutungura also said there are, however, exceptional cases where children born in civil partnerships are also entitled to a share of the deceased’s property. “The legally married wife is entitled to inherit from the deceased’s estate, however, she is not automatically entitled to all property that may have been in the custody of the small house. Courts have consistently recognised that children born out of such relationships are legitimate and entitled to inherit from their father’s estate, irrespective of their mother’s marital status. 

“While the small house has no legal spousal rights, the courts have, in limited circumstances, acknowledged that she may have an equitable interest in property where she can demonstrate direct contribution towards its acquisition or improvement, or establish a joint venture or unjust enrichment claim. Until the Master of the High Court or duly appointed executor finalises the lawful distribution, all such property remains part of the deceased estate,” she said.

In her presentation during the THAW launch, founder, Mrs Nicolette Kulera, said these are issues that every woman must be made aware of.

“It is sad that we have women who get the shock of their lives when confronted with such incidences. We must be aware of everything that relates to such legal matters, and this is the reason why THAW always tries to take the opportunity to empower our women in towns and villages on their rights, apart from economic and health-related empowerment initiatives that we undertake,” said Mrs Kulera.

Herald