Otillia Bhebhe (nee Tshuma) v Estate Late Elias Bhebhe and Others

The plaintiff entered into a customary marriage with the late Elias Bhebhe on 18 June 1984 under the African Marriages Act. Unknown to her, the deceased was already married to the 2nd defendant (Sizzie Bhebhe) in a civil marriage contracted on 12 July 1975. The deceased separated from the 2nd defendant around 1980 but never dissolved the civil marriage. The deceased and plaintiff lived together from 1984 until his death in 2000. In 1985, the deceased transferred his right to stand 7665 Pumula North (allocated during his marriage to the 2nd defendant) to stand 7095 Nkulumane. The plaintiff paid the deposit of Z$408.11 required for the transfer and made all subsequent loan repayments through salary deductions, as the deceased was unemployed at the time. The property was extended from four rooms to eight rooms during their cohabitation, with the plaintiff contributing significantly. The plaintiff only discovered the existence of the civil marriage after the deceased's death in 2000 when Impact Trust Executors advertised the estate. The 2nd defendant had no contact with the deceased or the property for 20 years but claimed her rights after his death based on the civil marriage certificate.

• Whether the customary marriage between the plaintiff and the deceased was valid given the subsistence of the deceased's prior civil marriage
• Whether the plaintiff, as a party to a putative (bigamous) marriage, was entitled to share in the estate of the deceased
• Whether section 3 and 3A of the Deceased Estates Succession Act apply to putative marriages
• What share of the matrimonial property (stand 7095 Nkulumane) should be awarded to the plaintiff

The court ordered that: (a) The immovable residential property being stand number 7095 Nkulumane, Bulawayo be valued by an independent estate agent and from the value so determined the plaintiff be awarded 50% and 2nd defendant 50% thereof; (b) The costs of the evaluation be shared equally between the plaintiff and the 2nd defendant; (c) Each party bears own costs.

A customary marriage contracted during the subsistence of a civil monogamous marriage is bigamous and invalid, as a person married under a monogamous regime is deemed to have waived customary privileges regarding polygamy and suffers absolute incapacity to marry another person. However, where such a bigamous marriage constitutes a putative marriage (where one party was genuinely unaware of the impediment), the innocent spouse is entitled to protection under both the Matrimonial Causes Act and the Deceased Estates Succession Act. The provisions of sections 3 and 3A of the Deceased Estates Succession Act apply to putative marriages just as section 7(1) of the Matrimonial Causes Act does. An innocent party to a putative marriage who contributed significantly to the acquisition and improvement of matrimonial property should not be denied a share in that property merely because it was registered in the deceased's name, as this would unjustly enrich the estate and work an injustice on the innocent contributing party.

The court observed that the 2nd defendant had abandoned her matrimonial rights for twenty years, never visiting the Nkulumane house or the rural homestead, and never asserting her matrimonial rights during this period. She only emerged after the deceased's death to claim rights based on her marriage certificate. The court noted that the 2nd defendant and her son acted clandestinely in registering the estate without informing even the late Bhebhe's mother, and that the son obtained the death certificate from the plaintiff by misrepresentation. The court also noted the dissimulation and compromise that are inevitable in marriages involving persons with strong rural backgrounds, commenting on the 2nd defendant's hope over 20 years that the marital differences would be resolved. The court emphasized that denying the plaintiff a share would indirectly unjustly enrich the 2nd defendant who had made no discernible contribution to the estate beyond waving the marriage certificate.

This case is significant in Zimbabwean jurisprudence as it extends the application of matrimonial property rights and succession rights to parties in putative (bigamous) marriages where the innocent spouse was unaware of the impediment to the marriage. The judgment establishes that the protective provisions of both the Matrimonial Causes Act and the Deceased Estates Succession Act apply to putative marriages, preventing unjust enrichment and ensuring that an innocent spouse who contributed to the acquisition and improvement of matrimonial property is not left destitute merely because the marriage was technically invalid. The case demonstrates the courts' willingness to apply equitable principles to protect innocent parties in bigamous relationships, particularly where there has been significant contribution to property acquisition over an extended period.