Who is a child born out of wedlock?
In law, a child born out of marriage is known as a child born out of wedlock. Until recently, children born out of wedlock were not entitled to inherit from their father after he had died if he died intestate; that is without a valid will indicating to whom he had left his estate upon death. Previous High Court judgments did not entitle children born out of wedlock to an inheritance. This position under the law created a difference between children born in marriage and children born outside marriage. Children born outside marriage were called by obscene such names as “bastards”, “adulterine children” or “illegitimate children.”
Have things changed?
The law, however, is not static and it adapts to serve the people who are bound by it. As society has rapidly changed, the so called “bastards” have acquired rights. Children born outside marriage are no longer labelled as bastards or illegitimate children. They are given the term “children born out of wedlock.”
What is the current position of the law?
The position of the law significantly changed after the decision of the High Court in Bhila v Master of High Court and Others. The facts of the case can be summarised as follows:
The late Bhila was married under the Marriage Act [Chapter 5:11]. He had four children with his wife. At the time of his death, they were staying in Houghton Park, but also had another house in Borrowdale. The wife registered the estate with the office of the Master of the High Court as required by law. Upon advertising the estate as required by law, she got to know of the existence of three other children born to the late Bhila with other women. The Master appointed a neutral executor to wind up the estate. In the distribution plan, the Houghton Park house was awarded to the wife as the surviving spouse. The Borrowdale house was treated as free residue (extra property outside that which the wife was supposed to inherit at a minimum) and would, therefore, be shared by the wife and all the children including the ones born outside wedlock.
The appellant Bhila objected to this. The Master of the High Court ordered the distribution plan to be advertised. The wife then approached the High Court seeking to have the Master’s direction set aside. One of the issues that the High Court was called upon to determine was whether or not children born out of wedlock under general law can inherit from their late father who dies without a will.
The High Court judge, Justice Hlekani Mwayera ruled that children born outside wedlock under general law were entitled to inherit from their late father. The common law position is that such children cannot inherit from their father as confirmed in previous High Court decisions. The High Court held that the common law position violated the new Constitution, especially the provision on non-discrimination of children on the basis that they are born in or outside wedlock and also on the basis of the best interests of the child.
Section 56 (3) of the Constitution of Zimbabwe provides that “Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status or whether they were born in or out of wedlock.”
The Constitution is the supreme law of the country as it states in Section 2 that “ (1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”
What does the Bhila case mean?
The judgment in the Bhila case set a precedent (an example). Children born out of wedlock can benefit equally as those born in wedlock. What it means is that from now on when an estate is being divided, the surviving spouse receives a third of the estate. The children born in or outside wedlock share the remainder of the estate, that is two thirds, equally. In terms of inheritance, there is no differentiation between those children born in or outside of wedlock.
Sources
Constitution of the Republic of Zimbabwe
Heaton Law of Persons 4th edition
Cronje Law of Succession 2nd edition
Sunday Mail article by Slyvia Chirawu
Bhila v Master of High Court and Others (2015) ZWHHC 549
