A UNITED KINGDOM-BASED woman who left her husband 16 years ago has lost her bid to be declared as his surviving spouse after he married another woman and started a family.
Joyce Charlie had sued the executor, Mativenga Lloyd Mhushi, the Master of High Court, Wellington, Hillary, Italian, Elector and Diana Charlie and Elinah Nyamayaro representing the deceased husband's son Edgah.
Joyce had approached the High Court seeking a declaratur that the sole asset of the estate of the late Martin Charlie be declared a matrimonial property and reflect her as the sole beneficiary of the property.
The executor opposed the application.
Joyce claimed that she married the late Martin in 1978 in terms of the then Marriages Act and that the marriage subsisted until August 13, 2015 when the latter died.
She claimed that she was the surviving spouse and that during the subsistence of their marriage, they acquired immovable property in Ardbernie which forms the estate of the late Martin.
During the process of winding up the estate, an issue arose as regards the distribution of the residue of the estate.
The executor and the Master of the High Court were of the view that the property did not constitute matrimonial property and should be shared among all the beneficiaries.
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Joyce submitted in her founding affidavit that she relocated to the United Kingdom in 1999 seeking greener pastures but Zimbabwe was her home with the property as the only home she knew.
However, Martin had four children with other women who have shown an interest in the winding up of the estate.
However, Joyce argued that since the property was the matrimonial home and the only asset of the estate, there was no asset for the children to inherit as it was the preserve of the surviving spouse.
She also submitted that she sent money to ensure that the property was maintained, demonstrating her connection to the place.
An initial offer to buy out other beneficiaries, she argued, should not be held against her.
The executor, however, submitted that the only issue was whether or not Joyce was living on the property immediately before Martin’s death.
He further argued that by going to the United Kingdom Joyce had abandoned the matrimonial home, adding that she was away for more than 16 years.
He said this was a de facto divorce and argued that she could not be entitled to come back after the demise of the other spouse and claim the matrimonial house.
Joyce, according to the executor, had sent her relatives to collect her belongings from the house after Martin’s death.
In her ruling, High Court judge Justice Gladys Mhuri said it was not in dispute that Joyce left for the United Kingdom and never came back to the matrimonial home even during Martin’s illness and subsequent death and burial.
“Before the demise of Martin, the applicant sent her relatives to collect her belongings from the house and by then the late Martin was living with Elinah Nyamayaro as husband and wife from 2008 until he died in 2015.
“It is common cause that Joyce is the surviving spouse of the late Martin, the requirement that a person who seeks to inherit the house must be the spouse, is met.
“That, notwithstanding, does applicant meet the next requirement that she lived in the house in question immediately before the deceased’s death?”
She said where a couple had been living apart for some time, it was important to ascertain the nature of such separation.
The judge said Joyce did not provide proof that she sent money for the children’s upkeep and maintenance of the house.
“She never returned to this house since her departure in 1999, not even to come and see her ailing husband, not even to come and attend his funeral and burial. She was absent for 16 years and never returned.
“Thus, l conclude that even applying the purposive approach, it cannot be said applicant lived in the house immediately before deceased’s death,” she ruled.
“All having been said, it is my conclusion that applicant has failed to pass the hurdle that she lived in the matrimonial home immediately before her husband’s demise,” the judge said.
