Everything You Need to Know about the Different Types of marriages in Botswana
Written by: Tshegofatso M Seretse.
Are there different types of marriages in Botswana? How many of these exist? If you are interested in knowing the answers to these questions and more, then this article is for you.
History of law governing marriages in Botswana
Before Botswana was colonized, the country had it’s own way of doing things especially in conducting marriages. Marriages in Botswana at the time, were conducted under the Customary law of each particular tribe that existed. These were traditionally conducted at the Kgotla.
After Botswana was colonized by the British, a new law was introduced; called the ‘Common law’. This new law came with it’s own laws, among which marriage was also governed by this law.
The introduction of this new law thus resulted in a co-existence of the new law of marriage from the British and the old Customary law of marriage of the Batswana tribes. These two types of laws still exist side by side, even today. Which is why we have the Kgosi and the Government of Botswana working together in the branches of law related.
Now that we have discussed in brief the origins of these laws, we can further discuss the relationship between Customary Law Marriages and Common law marriages.
Customary Marriages
Customary law marriages are conducted at the Kgotla by a recognized Kgosi of a particular tribe in which the people who wish to get married belong to. This type of marriage will be governed by the laws of such specific tribe associated with. For example, if you belong to the Bayei tribe in Botswana, then your marriage will be governed by the Bayei Customary law. Another example is that, if you belong to the Ngwato tribe in Botswana and chose to get married under Bangwato culture, then your marriage will be governed by the Bangwato Customary law.
Common Law Marriages
Common law marriages are governed by enacted statute. The law that governs common law in Botswana is called the Married Persons Property Act CAP29:03. This law provides for how married persons will govern their property. Therefore, it has introduced two regimes being marriage in community of property and marriage out of community of property.
What is marriage in community of property?
Marriage in community of property refers to when married partners agree that they will own their belongings jointly. This means that both the wife and husband will own everything 100% with a combined share. This also includes property which the other party had before they got married.
Consequences of marriage in community of property?
These include:
- Everything belongs to both partners
- equal sharing of profits in the marriage e.g salaries/income
- equal sharing of expenses in the marriage e.g loans
- Consent is always required from the other party in everything especially when taking loans. This is because when one partner takes a loan, it also affects the other partner as their properties are combined. Therefore, the bank will not issue out a loan to the partner is there is no consent from the other partner.
- Upon divorce property is divided equally including both income and loans.
- Upon death and the marriage is dissolved the other partner has a claim to the share of the deceased partner together with their children if they have any.
What is marriage out of community of property?
This type of marriage does not combine the property of the married partners. Instead each partner retains their own 100% share in their own property. For instance, if A and B enter into a marriage out of community of property and A buys property, the property will belong to A only and not to be. However, if A wants the property to belong to both of them, then A can insist that A and B’s names both appear in the title deed upon acquisition of the property. Or A can write a Will that in the event that A dies, A will give the property to B to inherit.
Consequences of marriage out of community of property?
These include:
- No shared income or losses
- retain 100% ownership
- Upon divorce each partner leaves with what belongs to them
- No need for consent from other spouse when dealing with property or taking loans.
What is the common law marriage process in Botswana?
The common law process in Botswana is that when people want to get married:
- They visit the District Commissioner’s Office near them.
- They register their intent to get married on the register
- The register is left out for inspection for 3 weeks and displayed at the District Commissioners Office so that if anyone has an objection to the marriage such can be noted before the marriage is solemnized.
- After 3 weeks the couple goes back to the District Commissioner’s Office and signs a Marriage Certificate and a Marriage Instrument.
- Thereafter, the Marriage Certificate is given to the partners to keep as their original copy.
- The Marriage Instrument is sent to the Deeds Registry Office to be registered.
- After Registration the Deeds Registry Office sends the Marriage Instruments back to the District Commissioner’s Office.
- Then the District Commissioner gives the married persons their Marriage Instrument.
At the end the couple should have both 2 documents. The Marriage Certificate and the Marriage Instrument. The Marriage Certificate to show that they are married and the Marriage Instrument to show whether their marriage is in community of property or out of community of property.
These two forms are very important and should be kept safe at all times. They are needed when buying property, during issues of inheritance and when asking for money at the bank among others.
What is a Marriage Certificate?
A marriage Certificate is an official document that proves that a marriage has taken place. In Botswana the document contains the names of the two people getting married, their ID or passport numbers, 2 witnesses for both the husband and the wife etc. Accompanying the Marriage Certificate is a Certified Copy of ID or Passport. The contents of this instrument varies depending on which country you are in.
What is a Marriage Instrument?
A marriage instrument is a document that shows which type of marriage regime the married people have chosen. Either in community of property or out of community of Property. This instrument is important it is always required by financial institutions to prove the marriage regime.
How much does it cost to get married in Botswana?
In Botswana it costs BWP40 which is equivalent to $3 for normal marriage and BWP190 which is equivalent to $14 for a special license.
The trend in Botswana like in other African countries, has always been to embrace different cultures which is why most marriages always have two wedding ceremonies. The traditional customary wedding ceremony (under the Customary law of your particular tribe) and the Common law marriage which is what we term the White Wedding.
Some people can even get married under both laws, which then leads to a question of which law prevails in the event of a dispute. However, this is a topic for another time. Thus, if you look at these two ceremonies, it reveals how both types of laws which govern marriages are respected and practiced in Botswana.
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