IS A DIVORCED WIFE A “WIFE” FOR PURPOSES OF SUCCESSION?

A. INTRODUCTION

The question as to whether a divorced wife is a wife for purposes of succession is one that is solely focused on the Law of Succession Act, Cap. 160 (“the Act”). The Act represents a complete and a law sufficient in itself and therefore, it does not require other external interpretative documents. It is a sui generis phenomenon and unique to among other laws, the law of succession. In that regard, other laws that relate to family, marriage and divorce are ignored when determining certain aspects on the law of succession. Thus, to determine whether a wife is a ‘wife’ for purposes of succession, a blind eye must be given to the Marriage Act, 2014.

B. STATUTORY FOUNDATION

Thus, the long and short to the question whether a divorced wife is a wife for purposes of succession is in the affirmative. Section 29 (a) of the Law of Succession Act defines a Dependant as:-

“The wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death”

The foregoing definition applicable to the Act, it is imperative to map out what parliament meant by a former wife. In such circumstances, we look at how matrimony or marriage is brought to an end. In the Marriage Act, 2014, a marriage can be brought to an end by death, divorce or by operation of law i.e. presumption of death.

To look at the intention of parliament on the meaning of a former wife/wives, the interpretation rule applicable is the golden rule i.e. when the words of the legislature are clear and unambiguous, then we should no more but to give it life, the absurdities notwithstanding. Thus, applying the rule to Section 29 (a) of the Law of Succession Act, then a divorced wife would qualify as a dependant for purposes of succession. To further illustrate this concept, it is imperative that we look at case law and how the courts have interpreted Section 29 (a) of the Law of Succession Act, Cap. 160.

C. CASE LAW

The High Court at Malindi in the case of In re Estate of GCB (Deceased) [2020] eKLR, (Succession Cause No. 98 of 2016) held that the Law of Succession in terms of Section 29 defines dependant to mean:

(a) The wife or wives or former wife or wives and the children of the deceased whether or not maintained by the deceased immediately prior to his death.

(b) Such of the deceased parents, step-parents, grand parent, grand children, step children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers, and half-sisters as were being maintained by the deceased.  Immediately prior to his death and where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of his death.

In further expounding and interpreting the subject, it further noted that:-

“As it comes out from the provisions in terms of Section 29, the definition of dependant extends to cover “former wife or wives.”   My understanding of the provisions is that it enables ex-wife or wives who were under reasonable provisions and support by the deceased prior to his death to be still considered as dependants of the deceased even after the marriage has been dissolved.”

The Court having found that even after the dissolution of the marriage, the divorced wife still qualifies as a wife for purposes of succession proceeded to note that:-

“I find the operative words are such that even after a marriage has been dissolved and the decree absolute issued by the court there would be a claim under The Matrimonial Causes Act for distribution and sharing of the marital estate, hence the cannon and rule of interpretation under Section 29 of the Act.”

In support of the foregoing position by the High Court, the Court of Appeal in the case of Estate of Reuben Nzioka Mutua (Deceased) P&A Cause No. 843 of 1986 UR, the court observed interalia on the interpretation of the amendment to Section 3 of the Law of Succession.

“I have read the provision of the amendment carefully and my conclusion is that Mr. Situma misunderstood them completely.  The amendment I that it talks of or envisages a situation where for example, a man whom I will refer to as A married woman B under Customary Law and that marriage is valid and recognized under the custom.  Subsequently, he meets another lady C and the two conduct a marriage under statute.  Upon A’s death and for purposes of inheritance to A’s estate, B is considered a wife by the Succession Act, despite the fact that C is the one with a marriage certificate, having been married under Statute Law, The Succession Act will consider B a wife and therefore is entitled to inherit from the Estate of the deceased.  The amendment will come to B’s aid because she will be a woman married under a system of Law which permits polygamy.”

The above case constructively illustrates the disjoint between the Law of Succession Act and the Marriage Act on the definition of a wife.

The Court in the case of Jane Pamela Anyango Kounah & another v Jennifer Njoki Ochieng & another [2006] eKLR, albeit in arbiter, noted that:-

“I have perused the documents filed by the parties in these objection proceedings and I am inclined to agree with the 1st petitioner that the deceased had not divorced her by the time of his death.  In any event Section 29 of the Law of Succession Act recognizes former wives of a deceased person whether or not maintained by him immediately prior to his death as dependants of the deceased’s estate.”

Therefore, the former/divorced wife, does not need to prove dependency on the deceased immediately prior to his demise.

More illustratively, the Court in the case of Grace Nyambura Mbugua & another v Felix Kimani Mbugua [2017] eKLR while distributing the estate of the deceased among the beneficiaries (including the household of the deceased wife) noted that:-

“The petitioner was initially married to the deceased but later on they divorced for purposes of these proceedings she is a former wife and is classified as a dependant under Section 29 of the Law of Succession.”

The foregoing discussions illustrate beyond doubt that a divorced wife is still entitled to inherit and is considered a wife for purposes of succession.

D. CONCLUSION

Having established that section 29 of the Law of Succession Act, Cap. 160 entitles a divorced wife to inherit, it is crucial to appreciate the rationale behind it. What was the wisdom of parliament (or otherwise the lack of it) in recognising a former/divorced wife as a wife for purposes of succession. The case of In re Estate of GCB (Deceased) [2020] eKLR seems to offer an answer that in the issue of dependency, there is legitimate expectation that having provided for the household, the divorcee should benefit from the estate of the deceased.

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DOROTHY CHEPKOECH KIPRONO
Managing Partner, Advocate of the High Court of Kenya
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