No Inheritance For Wife On Separation- Court
By Dickson Jere
The couple lived together as husband and wife for twenty years until when they went on judicial separation in 2014. Within a year of being on separation, the husband died intestate.
Can a wife inherit property from the late husband’s estate when on judicial separation? That was a complex legal question that befell the High Court for Zambia.
Having heard from both sides, the High Court Judge ruled that the wife – even though on separation with her late husband – she was entitled to be treated as surviving spouse and able to inherit her portion from the estate. This is because judicial separation does not end the marriage but merely stops the married couple from living together. But the marriage, rights, status and obligations of the couple continues.
However, her late husband’s Administrators of the estate were not pleased with the legal interpretation by the High Court and decided to appeal against the Judgment.
A three-member panel of Judges of the Court of Appeal had to relook at the legal interpretation as to whether the surviving spouse can inherit from the late husband estate when they were on separation. The decision hinged on the interpretation of section 36(1) of the Matrimonial Causes Act.
“Our interpretation of Section 36(1) of the Act is that if one of the parties to a marriage dies intestate while judicial separation is in effect, the distribution of the estate of that deceased party will occur as if the surviving spouse had predeceased them,” the Court ruled.
In other words, the Court of Appeal opined that the wife – in this case – will not benefit from the estate because she would be treated by law as if she does not exist. She died earlier than husband in legal fiction!
“Consequently, the estate of the deceased will be allocated among the remaining relatives of the deceased, adhering to the intestacy laws of the country,” the three Judges said in this groundbreaking Judgement.
However, the Court observed that even though the law may seem unfair, it had its roots from the English Common Law, which states that at death, judicial separation is treated like divorce.
“…the surviving spouse is excluded from all the other’s property, and grants…” the Court said, quoting from the Halsbury’s Laws of England.
Our law – the Court opined – is actually extensively drawn from the English Matrimonial Causes Act of 1973.
A very interesting case this is! I hope it can reach the Supreme Court for final position as legal minds, especially academicians, are divided on this issue.
Take a read of the Judgment delivered last week on 15th February, 2024 under Appeal No. 43 of 2022. (Zimba and Another (sued as Administratrix) v Zimba (Suing as surviving spouse)
It was A WRONG JUDGEMENT. Someone may push for a SEPERATION IF he/she feels the other partner is AILING IN HEALTH SO that he/she benefits ALONE.
You misunderstand the law Andersson.
The gist is that normally a separation leads to divorce, if one party dies during separation, the divorce is finalized.
What this means is that you are excluded from claiming property as a surviving spouse.
It’s a good law really, you want to leave someone but want to claim their property, no ways.
You are right. In fact, most insurance companies would even investigate the death to ensure the surviving spouse had no hand in the death so that they cannot benefit from their own crime!
So the Court of Appeal got it right here and hopefully it was not by accident.
What a good judgement! Gold diggers be careful and warned! There’s no benefit for screwing old fellas unless you take it to the end. Half way, there’s no Gold and no benefit.