MAKWIRAMITI v FIDELITY LIFE ASSURANCE OF ZIMBABWE (PVT) LTD & ANOR 1998 (2) ZLR 471 (S)

Flynote

Customary law — marriage — marriage under Customary Marriages Act [Chapter 5:07] taking C place after marriage under Marriage Act [Chapter 5:11] — subsequent marriage null and void and not valid for any purposes

Pensions — benefits from pension fund — payment to widow — deceased marriage first under Marriage Act and then later under Customary Marriages Act — second wife not a widow for purposes of Pension and Provident Funds Regulations 1991

Headnote

The appellant and her late husband were married in 1970 under the Marriage Act. The marriage was never dissolved. In 1989, he married another woman, the second respondent, under the Customary Marriages Act. On the deceased's death, the respondent insurer started paying a pension solely to the appellant. It then discovered the existence of the second marriage and started paying the second wife, reducing the payments to the appellant. It considered that the second wife was a "surviving spouse" in terms of the Pension and Provident Funds Regulations 1991, which defined the term as meaning the widow of a deceased member of a pension fund, including the widow of a polygamous person. The appellant brought the matter before the High Court, which held that although the second marriage was null and void, the second wife remained a wife under an unregistered customary union and thus entitled to share in the benefits from the deceased's pension policy.

Held, that the second marriage did not exist in law. By marrying under the Marriage Act, the deceased had waived his customary privileges of polygamy. He ceased to be a "polygamous person". He could not be married monogamously and polygamously at the same time. The second respondent was not entitled to any benefits as a widow.