By Dickson Jere

A Nigerian – married man – had a girlfriend whom he looked after, including paying for her flat in Kabwata. He later took her to his family and went through a purported traditional marriage with her while he was still married to his wife. He had three Children with the same woman before he died.

His wife – whom he married under statutory marriage – was appointed Administrator of her late husband estate. She then distributed some of the properties leaving out the girlfriend and the three children. She claimed she did not know of their existence and testified that she had lived with her husband since they got married in 1971.

The girlfriend sued his wife who was the Administrator, claiming that she was also entitled to the estate as second wife or dependant, including her children. She testified that he had stopped her from working so that she can remain at home where he provided everything for her.

After hearing the case, the High Court ruled she was not his second wife as he was already married under statute when he purportedly married her in the village. Therefore, there was no marriage between the two even though they even lived together in the Kabwata flat.

However, the Court ruled that she was nevertheless entitled to 10% of the estate as a “dependant” since he maintained her.

This prompted his widow to appeal to the Supreme Court, arguing that a “mistress” cannot inherit from the estate of the deceased. She argued that the law on ‘dependant’ was meant for only close relatives who were maintained by the deceased.

The Supreme Court, having heard the appeal, held thus;

“In our view, this evidence clearly established that the deceased was living with the Respondent (girlfriend) and that he actually maintained her,” the Judges noted.

The Court looked at the definition of “dependant” under the Intestate Succession Act, which states that dependant is a “person who was maintained by that deceased immediately prior to his death” and lived with that person.

“We uphold the learned trial Judge that the Respondent was a dependant within the meaning of section 3 of the Act,” the Judges ruled, adding that parliament would have limited the definition if that was the intention.

The Court also ordered that children from the girlfriend should also inherit equally from the estate of the deceased with his other children from his wife.

Case citation- Oparaocha v Murambiwa – (2004) ZR 141(SC).

Lecture Notes;

1. This case dealt with definition of dependant under the Intestate Succession Act and the Court ruled that the term goes beyond relatives so long as you can prove that you were maintained by the deceased and lived with him. Or alternatively, you were a child whose education was dependant on the deceased.

2. This case also underscores the legal principle that once married under the Act, and you contract a second marriage even under customary law, that second marriage is invalid.

3. To avoid such problems after death, just write a Will!