Lobatse High Court’s Justice Leatile Dambe has granted an order directing that matrimonial property regime of a couple which sought to vary property regime be changed from out of community of property to in-community of property.
The judge also ordered that the couple is authorised to enter into a notarial deed by which their property is to be regulated.
The couple was challenging the decision of a marriage officer who rejected their wish to marry in-community of property in 2002 when they got married in Gaborone on the basis that the husband was a foreigner and they could only marry out of community of property as in-community of property was only for Botswana citizens.
The wife said she approached the High Court after being advised by her attorneys at Ndadi Law Firm that there is a new law in place that permits married couples to vary their property regime.
The new law in question was passed by Parliament in 2014 and provides for the validation of property regimes that were found to be invalid under the old Act of 1971.
Section 8 of the new Act provides for couples married under Common Law, to change their property, loss and profit regime from one type to another (either in community or out of) up to a maximum of two times.
The new law allows the same for married couples subject to Customary law who have exempted their property from being administered under Customary law.
According to one of the couple, “in practice we essentially live as married in community of property as we regard what we acquire as owned by both of us. However we are aware that the law treats our properties separately hence the need to regularise.”
I have also faced difficulties attempting to obtain home loans in the past because the bank would not accept combining our resources to qualify for a higher loan as we are married out of community of property; this has prejudiced us greatly.
Commenting on Justice Dambe’s judgement, Uyapo Ndandi of Ndadi Law Firm said “this to my knowledge is the first case that tested the new law. I am happy the application I moved before the High Court succeeded. The law is very much welcome as it allows parties to change their property regime as circumstances may change.”
Ndadi added that “ I caution people to know that this law does not come to the aid of those seeking to run away from creditors as creditors are entitled to oppose the application. That is why the law requires the parties to place notices of their intention to change from in community to out of community and vice versa in the government gazette and newspapers.”
He observed that the process is rather cumbersome and expensive as newspaper publications and lawyers’ fees may be prohibitive.
“The parties also have to file a Notarial Deed with the Registrar of Deeds, which adds to the costs,” said Ndadi.
The old Act presupposed that couples married under Common Law were married out of community of property, unless they signed an instrument registering to be married in community of property before the solemnisation of their marriage.
Under the old Act, the form needed to arrive before the Registrar of Deeds within 90 days. The Act was also silent on whose responsibility it was to submit the forms to the Registrar of Deeds.
The new Act also provides for the Registrar of Marriage to submit the forms registering the property regime with the Registrar of Deeds within 180 days, an extension from the previous 90 days. It also allows for the Registrar of Marriages or the spouses to apply to the High Court for an order directing the Registrar of Deeds on an instrument such as a marriage certificate where an error is discovered after registration. The new Law will cover all marriages, even those married under the old Act.