Determining matrimonial property rights on divorce : an appraisal of the legal regimes in Botswana

摘要

The bulk of the matrimonial property regimes operating in Botswanawere inherited from the country's colonial past. Since independencethere ha'> not been any realistic attempt to reform them. The thesis setout to appraisal the legal regimes governing the determination ofmatrimonial property on divorce to ascertain their efficacy in realisingthe legitimate aspiration of married couples. Comparisons were madewith similar countries to determine how these have tackled problemsrelating to determination of matrimonial property on divorce.The study found that where there is a dispute about matrimonialproperty in marriages out of community, the courts have no discretionto readjust the rights of the parties. This situation adversely affect nonworkingwives who spent most of their time looking after theirhusbands and children without being able to acquire capital assets.Recognition is not given to such domestic contribution to the welfareof the family. It was also found that the exercise of the marital powerby husbands of marriages in community of property deprives wives ofthose marriages the right to administer the joint estate. The patriarchalnature of customary law, which governs the majority of disputes aboutmatrimonial property, discriminates against women.Consequently, the following, inter alia, are suggested as reformmeasures.(a) The courts should be g1ven a wide discretionary power,circumscribed by statutory guidelines, to reallocate matrimonialproperty on divorce irrespective of the matrimonial property regime thatgoverns the marriage. TI1e underlying principle should be equality ofsharing but this may be departed from where the circumstances of theparticular case warrant it(b) A spouse's domestic contribution towards the welfare of the familyshould be recognised.(c) The marital power of husbands should be abolished.(d) The provisions of the Matrimonial Causes Act should be madeapplicable to customary marriages.