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The Laws of Marriage and Divorce

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The Laws of Marriage and Divorce

Marriage is a pleasant topic, but this can sometimes be marred when we have to deal with the issue of divorce.

The failure of a marriage, for any reason, is always a sad situation.

First and foremost, we must appreciate that there are different types of marriage regimes; namely: marriage in community of property, marriage out of community of property, and marriage where parties have signed a prenuptial contract.

In Botswana, the majority of marriages are in community of property, and more often than not,our culture and custom dictates that the married couple should share everything.

As such, at the time of marriage, couples do not have time to think twice to opt or to learn about the different types of marriage regimes.

Divorce does not even come to mind, which though understandable, can also be a challenge, as the sad reality is that recent years have seen the number of divorce cases in Botswana rising.

The failure of a marriage, for any reason is always a bad situation.Studies and research papers show that rising divorce rates abound, pointing to a rapid increase that only continues today.

At Legal Guard, we see no less than 20 cases of divorce cases every month coming through our doors.

This is the harsh reality that leaves us with no option but to discuss the issue of divorce in very real terms.

Be that as it may, it does not mean that any person who seeks divorce is immediately assisted accordingly.

We try to ensure that the applicant has gone through the process of mediation and reconciliation through various mediums like counseling, relatives and parents and even spiritual assistance from churches.

The divorce route must be the last resort.

Divorce is by no means an easy process or matter, but I’ll try to give a basic introduction to the topic.

In our legal system in Botswana, an applicant can divorce on one of the 4 grounds provided by the relevant Act.

These are, in no particular order: Adultery; Unreasonable behaviour; Desertion for a period exceeding 2 years; and Living apart for a continuous period of more than 2 years and with the other party consenting to the divorce.

Over and above that, the divorce has what is called ancillaries.

This relates to children of the marriage and the property (immovable & movables or assets and liabilities).

To begin with, before one decide to initiate divorce proceedings, it is advisable to seek legal advice.

At Legal Guard, we provide such in-house services because a divorce matter can be a very long drawn out process extending to months, if not years, of back and forth.

Parties are therefore encouraged to aim towards ensuring a peaceful divorce and this necessitates cooperation from both parties to avoid back and forth and emotional distress.

This is especially where children are involved.

As such, a settlement agreement as what we strive for.

This is where parties agree on the grounds of the divorce, the custody and maintenance of children and the division of their estate.

This way the proceedings become tidier, easier and less time consuming.

On the other hand, if parties do not cooperate, they risk losing their estate, as in extreme cases, the courts can order that all the properties be sold in an auction to the highest bidder, paying all debts first before the division of the balances whether positive or negative.

In such instances, it is highly likely that the properties are not going to be sold at their value, thus making the parties lose their assets.

Under the circumstances, one needs to prepare ahead of time when seeking legal advice by having the following handy:
a) The type of marriage regime the parties are involved in;

b) The ages of children, especially minor ones; adoption documents where relevant; amounts of school fess, transportation, lunch packs, clothes, etc.
c) A clear list of all the assets and liabilities, including:

List immovable property; location, under whose names are they   registered, developed or not;

List of movables; location, under whose names are they registered;

Debts (you can get settlement letters to have an idea of remaining balances), under whose names are they registered;

Companies (get registration document from Registrar of Companies to know directorship and shares); and
d) It is also advisable for one to seek the assistance of a financial advisor like an auditor, estate agent, etc, to know the properties worth vis-a vis liabilities.

Such preparation assists in having a fair division of the estate where parties are married in community of property or where parties have signed a pre-nuptial contract.

A legal expenses insurer’s in-house attorney will also be able to advise and assist to some degree.

This is in terms of what will be a fair division of the estate, custody and maintenance of the children to an extent of even assisting with drafting of the paper work to file before the Court.

Given the complexity with which divorce proceedings may sometimes result in, it is always best to ensure that you seek the advice of a professional.

Don’t get yourself in a scary situation by listening purely to conjecture or well-intentioned family advice, when you have the option of professional counsel.

After all, information is, as they say, power.
This monthly column is part of a consumer education drive by Legal Guard.