Margaret Chirowodza v Freddy Chimbari and The Master of the High Court and Sabrina Chirowodza

The applicant married the late Mapheous Chirowodza in 1981 under the African Marriages Act (Chapter 238), and the marriage was solemnized in 1993 under the Marriages Act (Chapter 37). Unbeknown to the applicant, the deceased had married Sabrina Tatira (third respondent) in 1987 under the African Marriages Act. During the marriage, the applicant and deceased acquired two immovable properties registered jointly, including Stand 6846 Zimre Park, Ruwa. In 2001, the applicant went to the United Kingdom for employment by mutual agreement with her husband to raise resources for completing the Ruwa house and other family needs. The deceased and children lived in the Ruwa property until his death on 24 June 2011. The applicant would return on vacation and stay at the Ruwa property with her family. After the deceased's death, the executor dative (first respondent) prepared a distribution plan that did not award the applicant the deceased's 50% share in the Ruwa property on the basis that she was not living there at the time of death, instead proposing to distribute it among the applicant, the second wife, and seven children.

• Whether the Ruwa property should be declared the applicant's matrimonial home despite her physical absence in the United Kingdom at the time of the deceased's death
• The proper interpretation of the phrase 'lived in' in section 68F(2)(c)(i) of the Administration of Estates Act [Chapter 6:01]
• Whether temporary absence for employment purposes disentitles a spouse from being deemed to have 'lived in' the matrimonial property
• The status of the 1993 marriage solemnized under the Marriages Act where a prior customary law marriage existed

1. Stand 6846 Zimre Park, Ruwa declared as the matrimonial home of the late Mapheous Chirowodza and Margaret Chirowodza; 2. The applicant declared the sole beneficiary of the deceased's half share in the property in her capacity as the wife who lived in that house; 3. The third respondent to bear the costs of the application.

A spouse who has temporarily left the matrimonial home for employment purposes with the mutual agreement of the other spouse, who maintains marital links, returns periodically to the property, keeps personal belongings there, and has a permanent intention to return, must be deemed to have 'lived in' that property for purposes of section 68F(2)(c)(i) of the Administration of Estates Act [Chapter 6:01]. The phrase 'lived in' must be interpreted purposively to give effect to the legislature's intention to protect surviving spouses from being rendered homeless and destitute, and such interpretation must account for modern realities including employment-related migration.

The court made observations about marriages solemnized under the Marriages Act where a prior customary law marriage exists, noting that such marriages must be treated as customary law marriages for estate administration purposes under section 68(4) of the Administration of Estates Act. The court also distinguished cases of de facto divorce or permanent separation (such as in Jessie Chinzou v Oliver Masomera and Others HH 593-15, where separation lasted 37 years), emphasizing that maintaining marital links is essential. The court used the analogy of a bird leaving its nest to fetch materials, illustrating that temporary departure for family benefit does not constitute forfeiture of rights to the home. The court noted that the executor should have consulted more carefully with beneficiaries and considered the applicable principles before preparing the distribution plan.

This case provides important guidance on the interpretation of 'lived in' under section 68F(2)(c)(i) of the Administration of Estates Act in the context of modern realities where spouses may work abroad. It confirms that temporary absence for employment purposes does not disentitle a spouse from being deemed to have lived in the matrimonial property, provided marital links are maintained and there is an intention to return. The judgment emphasizes a purposive interpretation that advances the legislature's objective of protecting surviving spouses and minor children from destitution. It is significant in the context of Zimbabwe's (and by extension South Africa's) migrant labor patterns and the need to adapt estate law to contemporary family arrangements.