Widow Keeps Matrimonial House – Court

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Widow Keeps Matrimonial House – Court
By Dickson Jere
A man had five children before he got married to his wife. He later passed on without having any children with the widow. He also left debts and only one property – the matrimonial house – where he lived with his wife. He had no Last Will and Testament.
When the Administrator was appointed, he immediately gave three months notice to the widow to vacate the house as he wanted to sell it and use the proceeds to pay off the debts left by the deceased. The widow declined to leave the house, prompting the Administrator to sue her in the Local Court.
The Local Court declined to evict the widow saying she had a life interest in the house.
Unhappy, the Administrator appealed to the Magistrate Court at Luanshya, who reversed the Local Court decision and ordered that the house be sold to pay off the debts.
The Administrator, armed with the lower Court decision, went ahead and sold the house.
The widow was not happy.
She then appealed to the High Court in Ndola. Judge Jane Kabuka (as she then was), heard the appeal and determined thus;
“Where a deceased person is survived by a spouse and children, the matrimonial house does not form part of the distributable estate over which the Administrator has authority…” the Judge said.
She explained that under the Intestate Succession Act (Section 5), the law vests the rights and interest in the matrimonial home in the surviving spouse for a life time unless she dies or remarries. Then if that happens, the house will automatically move to the children who will have the rights in the house absolutely.
The widow also keeps the household goods and chattels that were in the matrimonial home, which will be owned by her and the children of the family.
Judge Kabuka then declared the sale of the house as “null and void” or simply reversed the sale of the property. She gave back the house to the widow.
Case citation – Mutonga v Mukobela (2008/HN/CA/30.
Lecture Notes;
1. The law (Section 19 of the Intestate Succession Act) gives powers to the Administrator of the estate to sell property in order to administer the estate including paying debts of the deceased. However, the law has removed the matrimonial house from being sold in order to protect the widow/widower and the children so that they do not become destitute.
2. Even when the Administrator wants sell any of the property forming the estate, he ought to seek the leave of court (permission) to sell. Simply, every sell of the estate has to be approved by Court.
3. I picked this Judgment today as a tribute to Mrs Justice Jane Kazora Kabuka who retired last week from the Supreme Court after serving almost 20 years on the bench. I consider this Judgement as one of her major contribution to the jurisprudence of family law in Zambia. Well out!

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