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.
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. Newsday
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