What you should know before getting married in Botswana

By: Beaven (LLB, LLM SA)

Botswana has got a lot of pristine wedding venues sanctuaries of tranquility with impeccable environment and sceneries. All these entice potential weds to think of getting married in Botswana. Not a bad idea at all. A wedding needs to be a memorable one it should be beautiful after all. However, one needs to understand a bit more about the Matrimonial Property Regime of Botswana before they say I do. Unlike South Africa which has Community of Property as the matrimonial property default regime upon marriage, Botswana’s default matrimonial regime is ‘Out of Community of Property’. In community of property means that the property becomes co-owned by the couple upon marriage. Out of community of property means each party keeps their

property in their name, that which they had before they got married and also that property they shall acquire during the subsistence of the marriage. Some couples just wed they will not even enquire or let alone understand what property regime they are getting into when they get married. Wedding bells are exciting but they have a time to fade then parties will begin pondering on what property regime they got themselves into. What if the spouses want to acquire property borrow money or (God forbid!) death of one spouse or divorce? What will happen to the property? Most people get married under the banner of love, they have faith that nothing bad shall happen to them as long as love leads. Oh! forewarned is forearmed all divorces we see were once unthinkable because of the blistering love those who died were not stupid and those we see broke, and their property being attached and they earn a place on the blacklist did not plan it even companies get sequestrated although they have managers. Upon termination of the marriage by death or divorce the assets and liabilities need to be divided. What this means is that people should understand and be ready for proprietary consequences of marriage, even before they get married; save this information for the rainy day! Even those in life partnerships and other forms of unions, “hear oh hear!”

If the couple is domiciled in Botswana the Married Persons Property Act 2014 (MPPA) provides for two interesting issues that we shall talk about in this article:

Firstly, the default regime is out of community of property.

Secondly, the new Act allows the spouses to change their regime from out of community of property to ‘in community of property’. If the couple needs to change their property regime, they have to apply for leave from the High Court. All creditors should be notified in order to protect them, this is done by publishing in the Government Gazette and a newspaper of national circulation. It is a requirement of the Act that good faith and reasons should be forwarded to the High Court in the application to change the matrimonial property regime. The change of a Matrimonial Property Regime can only be done once, in the subsistence of the marriage, it is not permissible to change to ‘in community of property’ today then tomorrow change again to ‘out of community of property’. Besides the Married Persons Property Act 2014 there is a judicial precedent set out by the Judge President of the High Court of Botswana in 2013 where he set out three possible regimes for couples; Marriage in Community of Property (Varied by an ante nuptial contract(anc) (which was by default until 1 January 1971).

Customary Law Regime.

Marriage out of Community of Property (which is the current default regime). A spouse who has contributed to the improvement of the other spouse’s estate for instance extending the house belonging to the other spouse, labour or expertise contribution has a claim but would only need to prove such a contribution towards the said improvement. If therefore a South African man goes to Botswana with the intent of being domiciled there or make it his permanent home or stays there for a period exceeding 12 months, marries a Tswana woman and weds in Botswana, by default, they get married out of community of property. After two months, the man changes his mind and wants to return forever to South Africa, the marital regime will not automatically change to the South African default regime of ‘in community of property’. It is important to understand the marital property regime before getting married otherwise some people will regret after already having entered into a matrimonial property regime they never intended. Marriage is great but people should get into it fully understanding the legal consequences attached.