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ARTICLES
ABOLITION OF MARITAL POWER IN BOTSWANA: ANEWDIMENSION
IN MARITAL RELATIONSHIP?
E. K. QUANSAH*
ABSTRACT

Marital power has been a feature of marriages in community of property ever


since that matrimonial property regime was introduced into Botswana, then
Bechuanaland, in the late nineteenth century. Its exercise by husbands in those
marriages was the object of much criticism, mainly because it subjected the wife
to the status ofa minor with the implication that she could not exercise a number
ofjuristic acts without the consent or permission of her husband. Calls for the
abolition ofthe marital power went unheeded until 1970 when Parliament enacted
the Married Persons Property Act. That Act reversed the then existing presumption
that statutory marriages entered into without antenuptual contracts were deemed
to be in community ofproperty and substituted a presumption of marriages out
of community of property unless otherwise indicated by the spouses before the
marriage. The hope was that with the presumption in favour of marriages out
of community of property the marital power would wither away over time. This
hope turned out to be a forlorn one. The Abolition of Marital Power Act 2004,
which is to come into effect on notice, seeks to abolish the marital power and its
consequences in existing andfuture marriages in community ofproperty. It makes
provisions, inter alia, for the administration of the joint estate in such marriages
and takes the opportunity also to abolish the concept of the unity of matrimonial
domicile which applied to all marriages irrespective of the matrimonial property
regime governing the marriage. This article examines the provisions of the
Act, comparing them in appropriate contexts with similar legislation in South
Africa, to ascertain its potential to impact positively or otherwise particularly on
marriages in community ofproperty and generally on marriages out ofcommunity
ofproperty.
1.

INTRODUCTION

Marital power and marriage in community of property are inextricably bound

LL.B (Hans.), LL.M (London), LL.D (UNISA), Of Gray's Inn, Barrister, Barrister & Solicitor (Ghana),
Attorney (Botswana), Associate Professor and Head of Department of Law, University of Botswana, Private
Bag UB00705 Gaborone, Botswana

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together in that the former is a necessary consequence of the latter!. The marital
power has a long history of development from Roman law through to RomanDutch law to its eventual integration as part of Botswana law. Earlier RomanDutch writers, such as Voet, 2 attributed the existence of the marital power to the
alleged inferiority of women whilst later writers sought to explain its existence
on consideration of expediency. This has even been judicially rationalised on the
basis of the wife's expressed or implied consent. 3 Irrespective of the rationale for
its existence, the exercise of the power over the years has given rise to criticism
and a call for its abolition.4 These criticisms notwithstanding, no concerted effort
was made by the legislature to abolish it until 2004. In 1970, there was a feeble
attempt to ameliorate the effect of the exercise of the power when the Married
Persons Property Act was passed. The responsible Minister at that time said in
Parliament that the Act had as its object:
" ... to amend the law relating to the ownership and control of
property of married persons ... [U]nder the common law the property
of married persons, who are not Africans, falls into a common pool
which, although jointly owned by the spouses, is entirely controlled
by the husband unless the spouses execute an antenuptial contract
before marriage. This places the wife, in relation to the property of
the marriage, in almost the same position as a minor child. This is
considered to be inconsistent with the status of women today. The
Act makes provision for the community of property to disappear
after pI January 1971 unless the spouses wish to be married in
community."s
Despite this prediction of the withering away of the community of property, and
with it the marital power, what the Married Persons Property Act 1970 eventually

It was possible prior to the enactment of the Married Persons Property Act 1970 to use an antenuptial contract
to exclude community of property and community of profit and loss but retain the marital powe~. If this
matrimonial property regime is chosen, which rarely happened, the spouses were married out of community
of property but the husband exercised the marital power. The husband administered his wife's separate
estate and had the same freedom of administration as a husband married in community of property. See the
South African case of Erasmus v. Erasmus 1942 A.D. 265 at p. 271.

Johannes Voet (1647-1713) was a Dutch jurist whose writings on Roman-Dutch Law are frequently cited and
relied upon by the courts in South Africa.
See H.J. Erasmus, et ai, Lee & Honore family, things and succession, Butterworth, Durban (1983), at para. 64
and the South African case of Estate Sayle v. CIR 1945 A.D. 388 at p. 398 per Waterrneyer C.J.

See for example, A. Molokomrne, "Marriage: What every woman wants or a declaration of 'civil death'7 Some
legal aspects of the status of married women in Botswana." Pula - BoTswana Journal of African Studies
(1984), and; Government of Botswana/UNICEF Report - Children, Women and Development in BoTswanaA situation Report October 1989.

See Hansard vol. 34, 1970 at p. 16 per Hon. Masisi, Minister of State.

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did was merely to reverse the previous presumption in favour of community of


property in the absence of an antenuptial contract, to a presumption in favour
of marriage without community of property. Section 3 (1) of the Act provided
that community of property and community of profit and loss, the marital power
or liabilities or privileges resulting from it shall not attach to any marriage
solemnized on or after the commencement of the Act between spouses whose
matrimonial domicile is Botswana. Provision was however made for couples to
opt for community of property if they so wish, by filling in the form specified in
the first schedule to the Act. 6
The enactment of the 1970 Act did not dampen the desire of prospective married
couples to opt for the community of property regime. The regime was and is
still seen as the appropriate medium within which to demonstrate the couple's
commitment to each other. 7 Thus husbands of such marriages continued to exercise
the marital power in its pristine purity although the Deeds Registry (Amendment)
Act 1996 enabled women, whether married in or out of community of property,
and whether or not the marital power has been excluded, to execute deeds and
other documents required or permitted to be registered in the Deeds Registry
without their husband's assistance. Interestingly, South Africa, a country with
which Botswana shares a common law tradition, abolished the marital power in
all marriages in 1997. 8 The enactment of the Abolition of Marital Power Act,
20049 is therefore an attempt to bring the matrimonial property law in line with

For a commentary on the Act, see F.X. Rooney, "A decade of legal reform in Botswana" 92 South African Law
Journal (1975), at p. 101.
See G.O. Radigeng, Customary law and gender equality: The legal status of women in Botswana, (Unpublished
D.Phil Thesis, University of Oxford, 2004) at p. 196 and T. Maundeni, "Property issues in dissolution
of marriage in Botswana: Divorced mothers and disadvantage" in S. Kaye et al., Gender: Opportunities
and challenges - Report of the National Conference Proceedings 22-24 October, 2001, Gender Policy
and Programme Committee, University of Botswana, Gaborone, 2001, at p. 87. See also P.E. Kidd et al.,
Botswana families and women s rights in a changing environment, Gaborone, WILSA (1997), at p. 52
The abolition was done in stages staning with s. 11 of the Matrimonial Property Act 88 of 1984 which abolished
it in marriages of whites, coloureds and Asians entered into after I November 1984. This applied to the
country as it was before the re-integration of the "independent" republics of Transkei, Bophuthatswana,
Venda and Ciskei and the self-governing territories of Gazankulu, KaNgwane, KwaNdabele, KwaZulu,
Lebowa and Qwaqwa. Thereafter, s. 1 (e) of the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988 abolished it in marriages by Africans entered into after 2 December 1988, the General Law
Fourth Amendment Act 132 of 1993 abolished it in all existing marriages in the country as it was before
the re-integration. Finally, on 1 April 1997 the Justice Laws Rationalisation Act 18 of 1996 extended the
operation of the Matrimonial Property Act, 1984 over the whole re-integrated country thus bringing to an
end the exercise of the marital power in marriages in that country. See J. Heaton, "Family law and the
bill of rights" in Rautenbach et ai, Bill of rights compendium, Butterworths, Durban (1988), at para. 3C2 I
especially note 1.
The bill was published as supplement B - Government Gazette (15 October 2004). Presidential assent was
given to it on 20 December 2004 and it will commence on notice published in the Government Gazette. See
Rectification of the Laws (Commencement Dates) Order 2005, S.l. No.3 of 2005.

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contemporary trends elsewhere in the Southern African region. 10 This paper


attempts to analyse the provisions for the abolition of the marital power and assess
their possible impact on marriage in community of property. In order to put the
proposals in their appropriate context it will be apposite to look firstly at the nature
of the marital power and the consequences of its exercise before analysing the
provisions of the Act.

2.

NATURE OF THE MARITAL POWER

A leading South African juristll has stated that the marital power in its widest
sense embraces three elements, namely:
(a) The husband's power as headofthe family by virtue of which he has the decisive
say in all matters concerning the common life of the spouses and determines, inter
alia, where and in what life style they are to live,
(b) The husband's power over the person of his wife, including her representation
in legal proceedings and
(c) The husband's power over the property of the wife which enables him, in his
absolute discretion, to deal with the joint estate as its administrator and to do
the same with the separate assets of his wife, which do not form part of the joint
estate.
The power under (a) above is regarded as one of the invariable consequences
of the marriage and could not be excluded by an antenuptial contract. 12 The
powers under (b) and (c) are variable and they together constitute the narrow
sense in which the term is generally used. Thus, in Modise v. Modise,13 Livesey
Luke C.J. approved a dictum of Vieyra J. in the South African case of Strausz v.
Strausz 14 to 'the effect that a husband in a marriage in community of property is
the administrator of the joint estate, and as such he is free to alienate any such
assets under his power or control as he pleases and in his total discretion. The
learned Chief Justice added that it is only when the husband's motives in dealing
with the joint estate is redolent of fraud that he can be called to account. Tb-is was
a case in which divorce proceedings with regard to a marriage in community of

10

II

South Africa and Namibia have abolished the marital power but it still operates in Zimbabwe.
See H.R. Hahlo, The South African law of husband and wife, 5 th ed. luta, Cape Town (1985), at p. 189. See also
A. Van Aswegen, "Transactions between a spouse and a third party: The effect of the Matrimonial Property
Act 88 of 1984." 6 Modern Business Law (1984), at p. 141.

12

See the South African cases of Webber v. Webber 1915 A.D. 239 at p. 246; and King Confections (Pty.) Ltd. v.
Harris 1955 (3) S.A. 545 (E) at p. 546.

11

[1991] B.L.R. 333 at p. 335.

14

1964 (I) S.A. 720 (W) at p. 722.

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property had been instituted but had not been prosecuted. The husband applied
for an order to pennit him to sell the matrimonial home on such tenns as may be
deemed just and fair. The wife and the children were still living in the matrimonial
home. The court held, inter alia, that whilst the husband may exercise his right to
dispose of the matrimonial home he must first offer the wife suitable alternative
accommodation or offer her the means of acquiring such suitable accommodation.
The court adopted the following dictum from the South African case of Owen v.
Owen'5:
" ... although the husband may be the registered owner ofthe property,
he has no absolute right, while the marriage is in existence, to eject his
wife .... from the property without providing her with a matrimonial
home. Up to the stage at which the Court is able to detennine who
is guilty and who is the innocent party it seems to me that, all other
things being equal, the Court must detennine the matter upon the
basis that the marriage is still in existence and that the wife is entitled
to be provided with a home by her husband, both for herself and her
children. The fact that the husband is the registered owner of the
property cannot in my view detract from her right to be provided
with such a home."
In view of the lack of evidence that such suitable alternative accommodation or
an offer had been made by the husband, the court refused to exercise its discretion
to sanction the disposal of the matrimonial home. The Court of Appeal in Joina
& Associates v. Modikwa 16 reiterated that aspect of the marital power which gave
the husband power over the person of the wife. It held that a woman married in
community of property and subject to her husband's marital power cannot sue or
be sued without the consent of the husband. 17 In other words, the wife has no locus
standi in judicio, 18 that is, she has no right of appearance in a court of law.
The overall effect of the husband's exercise of the marital power is to subject the
wife to the husband's guardianship, effectively making her status analogous to
that of a minor.19 However, as pointed out by a South African jurist, 20 whereas

IS

1968 (1) S.A. 480 at p. 483 per Addleson 1.

16

[1999] 1 B.L.R. 475 (CA) at p. 481.

17

See also National Development Bank v. Mogatwane [1996] B.L.R. 755 (CA).

"In certain exceptional circumstances, such as those relating to her separate property, she can litigate without her
husband's assistance. See the South African case of Erasmus v. Erasmu$ op. cit. at pp. 161-162.
19

She has however limited capacity to act in respect of the joint estate. For example, with the husband's consent,
she can conclude a contract which will bind the joint estate. See the South African cases of Pretorius v. Hack
1925 T.P.D. 643 at p. 647 and Rautenbach v. Groenewald 1911 T.P.D. 114 at p. 1150.

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the guardianship of a minor serves the interests of the minor, the marital power
primarily serves the interests of the husband. Few of the safeguards for minors
under guardianship apply in the case of such a married woman. For example, unlike
a guardian, the husband is not liable to account for his administration of the joint
estate and he is not liable to the wife in damages if through his maladministration
the joint estate diminishes.21 As seen above, the husband may deal with the joint
estate as he pleases, and may even make donations to third parties to the prejudice
of the wife. It is no surprise therefore that the marital power became a symbol
of oppression in the eyes of many a married woman. The common law tried to
place some limitations on this seemingly unrestricted power and as noted above,
the legislature tried without success to ameliorate the effect of the power. A brief
discussion ofthese common law limitations will be in order at this juncture.

3.

COMMON LAW LIMITATIONS ON THE MARITAL POWER

The common law provided some protection for a wife married in community of
property but the efficacy of the protection left a lot to be desired. The common law,
for example, gave the wife (or her estate) a right of recourse against the husband
(or his estate) on the dissolution of the marriage where he had made donations
out of the joint estates in deliberate fraud of his wife or her heirs.zz It was also
possible to bring an actio Pauliana utilis (an action to revoke a donation made to
defraud the wife) on dissolution of the marriage against the third party to whom
the donation had been madeY In appropriate circumstances the wife could obtain
an interdict restraining her husband from making a donation to a third party during
the marriage. In the South African case of Pickles v. Pickles,24 the wife was able to
show that she had reasonable apprehension that pending the divorce proceedings
for the al1eg~d adultery of the husband with the co-defendant; the husband would
make large donations out of the joint estate to the co-defendant. An interdict was
granted against the husband. However, the difficulties in the way of securing
an interdict in such circumstances were illustrated in the case of Moisakamo v.
Moisakamo,25 where an ex-wife applied for an interdict to restrain her ex-husband
~

20

See Hali10, op. cit. at p. 194.

21

See the South African case of Pickles v. Pickles 1947 (3) S.A. 175 (W) at p. 179 per De Villiers 1.

22

2J

See the South African case of Covender v. Chetty 1982 (3) S.A. 1078 at p. 1080. As to what constitutes fraud
in this context, see the South African case of Pretorius v. PreTorius' EsTaTe & Anor. 1948 (1) S.A. 250 (AD)
at pp. 255-256 per Schreiner J.A.
See the South African cases of Merrington & Adams v. Welt (1898) 15 S.c. 313 and Nel v. Cockcroft and Anor.
1972 (3) SA 592 (T) at p. 595.

24

Op. cit. supra note 14.

25

[1979-80] B.L.R. 131.

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from disposing of property pending detennination of proceedings for division of


the property. The court held that for such an interdict to be granted, the litigation
must be of a vindicatory or quasi-vindicatory nature,26 or the applicant must show
an actual or well-grounded apprehension of irreparable loss.27 As neither of these
requirements had been proved the ex-wife's application was refused.
These valiant attempts to protect the wife proved ineffective. For example, the actio
Pualiana utilis was held in South Africa not to be available during the subsistence
of the marriage or at any rate, while the joint estate remained undivided. 28 There
was an obvious flaw in this decision as it seemed illogical to give a wife the right
to recover community assets from a transferee who had taken the property in bad
faith, with full knowledge of the fraud, but delay her ability to enforce the right
until dissolution of the joint estate at which time the damage would have become
irreparable. 29

4.

PROVISION FOR THE ABOLITION OF THE MARITAL


POWER

It is against the above background that the Abolition of Marital Power Act 2004
has been enacted. The Act is divided into six parts the salient aspects of which will
be discussed seriatim.

4.1

Preliminary Matters

Part I deals with preliminary matters such as the interpretation and exclusion of
customary and religious marriages from the application of the Act. The exclusion
of these marriages from the application of the Act means that if the marital power
is exercisable in any of these marriages it will continue to be so exercised after
the commencement of the Act. This in theory will have a negligible effect on
customary law marriages as the proprietary consequences of such marriages are
generally regarded as out of community of property30 because, inter alia, the
26

The terms 'vindicatory' and 'quasi-vindicatory' were defined in the South African case of Stern and Ruskin
NO v. Appleson 1951 (3) S.A. 800 (W) at p. 810-811. In the words of Millin J., "A vindicatory action is
one in which the plaintiff claims delivery of specific property as owner or at any rate lawful possessor. An
action is said to be quasi-vindicatory when delivery of specific property is claimed under some legal right
to obtain possession."

27

The test as to whether there exists such reasonable apprehension is an objective one. A mere assertion of
reasonable apprehension is not sufficient; it must be deducible from all the circumstances of the case. See
Moisakamo v. Mosaikamo op. cit at pp. 132-133.

2. See Nel v. Cockcroft and Anor. op. cit. at p. 595 per De Wet AJ.
29

30

See the criticism of this rule in the South African case of Reyneke v. Reyneke 1990 (3) S.A. 927 (E) at pp.
930-931 per Jones 1.
See I. Schapera, A handbook o/Tswana law and custom, 2" ed. , LIT Verlag, Hamburg (1994), at p. 153

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polygamous nature of such marriages is more compatible with separate estatesY


The practical reality of the customary law marriage relationship is however one
of subjection of the wife to the overall authority of the husband as a result of the
patriarchal nature of Tswana society. The husband as head of the family exercises
power of control over the wife similar to the exercise of the marital power under
the common law and this gives him control over the separate property of the wife.32
Thus, customary law wives suffer the same legal disabilities as their common
law counterparts and there is no logical reason why the former should not also
enjoy the liberating breeze emanating from the Act. 33 Perhaps since the marital
power was a common law concept the legislature felt the need to exclude it from
customary law marriages in an apparent attempt to preserve Tswana tradition. If
that is the rationale for the exclusion of customary and other religious marriages
from the Act, can it be said that tradition is immune to contemporary changes?
Continuous application of customary law rules that may have worked well in
bygone days without assessing their utility in the light of contemporary social
and economic changes may create hardship and injustice. 34 Having resolved to
abolish the marital power apparently on the basis that contemporary social and
economic changes warranted it, the legislature should have done so in all marriages
irrespective of the mode by which the marriage was contracted. After all, as
representatives of the people, the legislature is deemed to be the repository of the
knowledge of what is occurring in the country that it govems 35 and is expected to
be aware of the plight of the customary law wives and taken the opportunity of
enacting this Act to do something about it. One will however concede in respect
of religious marriages, that the exclusion may be due to the legislature's general
reluctance to regulate religious matters.

4.2

Abc'llition of Marital Power

Part II of the Act abolishes the marital power by providing in section 4 (1) (a) and
(b) that the common law rule in terms of which a husband acquires the marital
power over the person and property of his wife is hereby abolished and the'lllarital
power which a husband had over the person and property of his wife immediately

\1

See the South African Law Commission's Report - Customary marriages, Project 90 (1998) para. 6.3.

32

See G.O. Radigeng. op. cit. at pp. 195-199.

11

See E.K. Quansah, Determining Matrimonial Property Rights on Divorce: An appraisal of the legal regimes
in Botswana, (Unpublished LLD Thesis, University of South Africa, 200 I) at pp. 590-599 where, inter alia,
the abolition of the marital power in all marriages is advocated.

34

35

See remarks of Hayfron;Benjamin C.J. in Moisakamo v. Moisakamo [1981] B.L.R. 126 at p. 147.
In Badisa Moatshe v. The State Cr. App. No. 26/200 I (Unreported) at p. 16 of the transcript, the full bench of
the Court of Appeal observed that: "The legislature is the repository of knowledge of what is occurring in
the country it governs."

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before the commencement of the Act is also abolished. These provisions abolish
the marital power not only in future marriages but also in marriages existing
immediately before the commencement of the Act. However, provision is made
in section 4 (2) for the abolition not to affect the legal consequences of any act
done, omission or fact existing before such abolition. This provision preserves for
example, rights which third parties may have acquired in their dealings with the
husband with regard to his administration of the joint estate prior to the coming
into effect of the Act. Thus, if the husband had, without the knowledge or consent
of the wife, alienated property which formed part of the joint estate to a third
party, such a transaction cannot be impugned by the wife on the commencement
of the Act.
Section 5 further makes it clear that the abolition of the marital power removes the
restrictions which that power placed on the legal capacity of a wife and abolishes
the common law position of the husband as head of the family. Thus, full legal
capacity has been restored to wives of marriages in community of property who
may now exercise juristic acts or appear as plaintiff or defendant in a court of
law without the consent/assistance of their husbands. 36 The husband's position
as head of the family, as indicated above, was one of the three elements of the
marital power. It enabled him to have the decisive say in all matters concerning
the common life of the spouses,37 for example, where they are to live and the
style of living they are to adopt. The only qualification was that the husband
may not act unreasonably.38 In practice, the position of head of the family was
rendered largely hortatory because it did not entitle the husband for example, to
interfere with his wife's personal life or dictate to her where she may go or not
gO.39 This notwithstanding, the abolition of the husband's position as head of the
family restores equality between the spouses which will enable them to adopt a
consensual approach to matters pertaining to the their married life without the
wife being dictated to by the husband under some anachronistic rule of being the
head ot-the family.

4.3

Provisions regarding Marriages in Community of Pro~erty

Part III contains provisions regarding marriages in community of property. The


most important provisions under this Part are those contained in sections 7 and 8
1.

See the South African case of Godfrey v. Campbell 1997 (1) S.A. 570 (C) at p.574.

11

Voet 23.4.20.

18

See the South African case of Webber v. Webber 1915 A.D. 239 at p. 246.

19

See for example, the South African case of Palmer v. Palmer 1955 (3) S.A. 56 (0). CfH.R. Hahlo, "Nasciturus
in the limelight," South African Law Journal (1974), at p. 76.

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whIch deal with the equal powers of spouses in relation to the joint estate and their
juristic acts with regard to the same.

4.3.1

Equal Management of the Joint Estate

Sections 7 states:
"Subject to the provisions of this Part, a husband and wife married in community
of property shall have equal capacity to (a) dispose of the assets of the joint estate;
(b) contract debts for which the joint estate is liable; and
(c) administer the joint estate."
Section 8 states:
"Subject to section 9, a spouse married in community of property may perfonn
any juristic act with regard to the joint estate without the consent of the other
spouse. "40
The combined effect of these provisions is to give the spouses equal, concurrent,
or independent management of the joint estate as well as joint management of it.
In tenns of the equal management of the joint estate, both spouses have the power
to perfonn acts binding on the joint estate without the consent or even the prior
knowledge of the other spouse. This is made abundantly clear by the provisions of
section 8. Thus, a wife can sell her car, borrow money from the bank or change her
wardrobe without the consent of her husband. With regard to the joint management
of the joint estate, this means a spouse may perfonn certain defined acts affecting
the estate only with the consent of the other spouse. This places some restrictions
on the capacity of the spouses to perfonn juristic acts in relation to the joint estate.
This situation is a departure from that which existed before the abolition of the
marital power when the wife's capacity to act in relation to the joint estate was
generally restricted.

4.3.2

Requirement of consent by both spouses for certain acts

Section 9 sets out certain acts that one spouse cannot carry out without the written
consent of the other spouse. The contents of the section generally reflect those
acts which are considered to be so important that a unilateral action on the part
of either spouse may lead to serious friction between them. They generally cover

'" The contents of the two provisions avoid the criticism which has been leveled against the equivalent provision
in section 14 of the South African Matrimonial Property Act 88 of 1984 which emphasised on the position
of the wife and the definition of her powers in terms of the former powers of the husband. See PI Visser
& J.M. Potgieter. Introduction to Family Law. 2 ed . Juta, Kenwyn (1998). at p. 117 and J.D. Sinclair,
Introduction to the Matrimonial Property Act 1984, Juta, Cape Town (1984), at p. 17 et seq.

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immovable property, household effects, investments, suretyship, and money owed


to or accruing to a spouse, donation and judicial proceedings. Some of the specific
acts are:
(a) alienating, mortgaging, burdening with a servitude, or conferring any other
real right in any immovable property forming part of the joint estate;
(b) entering into any contract for the alienation, mortgaging, burdening with a
servitude or conferring of any other real right in immovable property forming
part of the joint estate;
(c) alienating, pledging or hypothecating any livestock,41 borehole, motor
vehicle, jewellery, coins, stamps, paintings or other assets forming part of the
joint estate and
(d) alienating, pledging or hypothecating or otherwise burdening any furniture
or other effects of the common household forming part of the joint estate.
The requisite consent must be in writing. There is however, no indication as to
whether this should be before, at the time of, or after the act has been performed.
It is not also indicated whether such consent needs to be attested. 42 It would
seem that the legislative intent is to require a written consent without any further
requirements. If that is the case, it is conceivable that a spouse may be coerced
into giving hislher written consent or such consent may be forged without the
benefit of a third party attesting to the voluntariness or genuineness of the consent.
It would also seem that there is room for ratification of an act done by a spouse
without the requisite written consent provided such written consent is given within
a reasonable time after the act has been done. Perhaps the Minister of Labour
and Home Affairs will utilise the power given to him under section 20 to make
regulations for the better carrying out of the objects and purposes of the Act to
make the requisite consent to be attested to by, for example, a notary public, and
to clarifY other aspects of the granting of the consent. Where a written consent
is given, it will operate only between the spouses. If a spouse were to die during
the currency of the consent, an executor, for example, will not be bound by a
consent given by the deceased.43 This is because the rationale behind the joint

41

See E.K. Quansah. LLD thesis. op. cit. at p. 594 where it was suggested that cattle. a specie of movable
property that plays a very important part in the life of Batswana, should be included in any list of acts which
require joint consent of the spouses. It is gratifying to note that this has been acceded to by the legislature.

42

Under ss. 15 and 17 of the Matrimonial Property Act 88 of 1984 of South Africa, four types of consent are
provided, namely, (a) prior written consent attested to by two competent witnesses regarding each transaction
separately; (b) written consent attested by two competent witnesses for each separate transaction; (c) written
consent without any further requirements and (d) oral or tacit consent. See D.S.P. Cronje & 1. Heaton, South
African family law, Butterworths, Durban (1999). at pp. 97-100.

43

In Kotziv Oosthuizen 1988 (3) S.A. 578 (C), a South African court held that an executorofa deceased husband
whose marriage in community of property was subject to a system of equal control, did not need the consent
of the surviving spouse in order to sell immovable property.

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administration of the joint estate is to foster cooperation between the spouses and
where a spouse dies such cooperation dies with himlher. Furthermore, since the
written consent is inextricably part of the joint administration which in turn is an
integral part of the community of property, when death or divorce terminates the
community the joint administration goes with it. It should also be noted that a
spouse who has given hislher written consent may revoke that consent at any time
before the act in question has been performed.

4.3.3

Acts not requiring other spouse's consent

Section 11 sets out acts which may be performed by either spouse without the
consent of the other. These are the ability or power to:
(a) sell, cede or pledge listed securities on the Stock Exchange in order to buy
other listed securities, and
(b) perform acts required to be performed in the ordinary course of his or her
profession, trade, occupation or business.
The exemption of the acts in (a) from the consent requirements would seem to be
aimed at not disrupting the activities of the Stock Exchange. Dealings in listed
securities demand prompt and, sometimes off the cuff decisions, which will be
unduly hampered were a spouse to be required to consult the other spouse for
hislher consent on these decisions. The exemption in (b) is also aimed at allowing
spouses to exercise professional judgment in dealing with matters occurring within
the sphere of their profession trade or occupation.

4.3.4

Effect of absence of consent and third party rights

Section 1o-provides that any act stipulated in section 9 which is performed without
the requisite consent or leave of court may be set aside at the instance of the
spouse who suffered prejUdice as a result of such performance. This provision
means that such an act will be voidable and not void because, if the aggrieved
spouse chooses not to impugn the offending act, it will remain valid. Furthermore,
what if the non-consenting spouse is not prejudiced? Will helshe still have the
right to impugn the act? Obviously not, as hel she will not be able to show
prejudice in that circumstance. One would have thought that since the written
consent is a condition for the performance of the juristic act, lack of it will render
the spouse incapable of performing the act in question and hence render such
purported performance void. 44 It would seem that the legislature does not intend
this consequence to follow. It is only by rendering void the consequences of such

44

See for example, the views of Visser & Potgieter op. cit. at p. 127 who argued that in such a case the third party
will not be able to claim performance in terms of the contract from the joint estate.

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failure to consult will the Act have created a real power of consent and encouraged
the desired consultation between the spouses as envisaged under section 9. The
effect of section 10 could also raise the possibility that the aggrieved spouse
instead of impugning the transaction may decide to retaliate by also doing an act
without reference to the other spouse. If the other spouse were to take advantage
of section 10 and impugn the transaction, will this not be a case of coming to
equity with unclean hands?45 This, it is submitted, is a recipe for spousal hostility
which could eventually undermine the marriage.
The distinction between void and voidable transactions is important because it
has serious implications for third parties dealing with the spouses. If, as provided
in section 10, the aggrieved spouse were to successfully impugn the transaction
entered into by the other spouse without the requisite consent, a third party who
acted in good faith in entering the transaction is left unprotected and stands to lose
whatever rights he/she may have acquired under the contract. The third party's
rights are subordinated to those of the aggrieved spouse. This could have some
implications for commercial transactions with married persons. Should a third party
dealing with a married person be put under an obligation to ascertain whether the
requisite consent has been obtained or should the onus be on the spouse to reveal
that he/she has the requisite consent? As section 10 of the Act stands, it would
seem that in order for a third party to protect hislher rights, he/she must ascertain
the marital status of the person he/she is dealing with and if it turns out that the
person is married in community of property, insist on the other spouse joining in
the completion of the transaction. This will obviously create some inconvenience
in commercial transactions but as aptly put by a South African commentator"6 on
that country's Matrimonial Property Act 1984, "a certain amount of commercial
inconvenience may be the price well worth paying in order to create a genuine
duty to consult spouses about transactions affecting shared property." Eventually,
answers will have to be provided by a court. In fact, it can be said that the sanction
for non-compliance with the consent provisions is weak not only because it fails
to render the resultant transaction void but also it fails to give protection to an
innocent third party dealing with the recalcitrant spouse in good faith.47

., On the basis the application of the equitable maxim of "He who comes to Equity must come with clean hands",
that is, without past blame as to the transaction which is the subject of the court's proceedings.
"" See N. Zaal, "Marital milestone or gravestone? The Matrimonial Property Act 88 of 1984 as a refonnative
half-way mark for the eighties," I Journal of South African Law (1986), at p. 66. It must be noted that this
was said in the context where the lack of consent renders the transaction void.
" Under s. 15 (9) (a) of the South African Matrimonial Property Act 1984, provision is made to safeguard the
interest of third parties. The said subsection provides that if the third party did not know and could not
reasonably have known that the transaction was entered into contrary to the provisions of the Act, the
transaction will be deemed to have been entered into in compliance with those provisions. Some aspects of
the protection of the third party have been criticized by commentators such as 1. Sinclair, An Introduction to

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Protection of spouses against each other

The following provisions are made to safeguard the interests of the spouses in
respect of the administration of the joint estate.
(a) If the requisite consent cannot be obtained because it has been unreasonably
withheld by the other spouse, section 12 (1) permits the spouse seeking the consent
to apply to a Magistrates' or High Court for leave to perform the act without this
consent. Alternatively, if the court comes to the conclusion that there is good reason
to dispense with the consent it will accordingly do so. In this latter circumstance,
good reason may be found where for example the spouse whose consent is being
sought is mentally disordered or has been absent from the other spouse for such a
length of time that hislher whereabouts is unknown to the other spouse.
(b) Further protection is afforded by section 13 which provides that if a court is
satisfied that it is essential for the protection of a spouse's interest in the joint estate,
it may, on the application of such spouse, suspend for a definite or indefinite period
any power that the other spouse may exercise with regard to the joint estate. An
order to this effect may not only affect the capacity of the spouse whose powers
have been suspended to perform acts for which consent is required but it will also
affect hislher capacity to perform acts for which consent is not a requirement. In
the former circumstance the other spouse may perform the acts on hislher own
without the consent of the spouse whose powers have been suspended.
(c) Section 10 (2) provides that notwithstanding the fact that a prejudiced spouse
can initiate an action to set aside a transaction entered into by the other spouse,
where a spouse performs an act in contravention of the consent requirement and
without leave of court and as a result the joint estate suffers loss, an adjustment
shall be made in favour of the other spouse upon division of the joint estate
or upon demand by the other spouse at any time during the subsistence of the
marriage. In considering whether or not the joint estate has suffered loss as a
result of a breach of the consent requirement, the court is to take into account
not only the economic value of the property in question but also any sentimental
value the property had for the spouse without whose consent the prop~rty was
alienated. Section 10 (4) provides that where a spouse makes a demand that the
adjustment should be made during the subsistence of the marriage, an amount
is determined to be payable to the spouse in settlement of such adjustment,
the amount shall be recovered from the separate estate of the other spouse.
Section 10 (5) further provides that where such a spouse has no separate estate,
the amount will be recovered from the joint estate and provision made for its
recovery when the joint estate is subsequently divided. An amount paid or assets
transferred as a result of a spouse's demand for adjustment during the subsistence
of the marriage forms part of that spouse's separate estate. Finally, section 10 (7)
provides that where there is sequestration of the joint estate, property acquired

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as a result of an adjustment during the subsistence of the marriage shall vest


in the trustee of the insolvent estate as if the adjustment had not taken place.
Whilst these provisions allow for adjustment of the interests of the spouses during
the subsistence of the marriage in the event of one spouse's action causing loss
to the joint estate, there is no protection against a spouse whose actions seriously
undermines the interest of the other spouse in the joint estate. 48 At common law,
the remedy of boedelscheiding (Separation bonorum - separation of goods)
was available to a wife against a dishonest, foolish or spendthrift husband. In
order to obtain this remedy, a wife has to satisfy the court that the husband, by
his prodigality or maladministration of the joint estate, threatened to reduce his
family to penury. Can a wife still take advantage of this common law remedy? It
is submitted that in view of the abolition of the husband's sale administration of
the joint estate, this remedy will be obsolete49 and hence cannot be utilised by an
aggrieved wife.
4.3.6

Spouses' capacity to litigate

Section 13 regulates the capacity of the spouses to litigate by providing as a


general rule that "a spouse married in community of property shall not, without
the written consent of the other spouse, institute or defend legal proceedings
against a third party." The non-fulfilment of this provision however, does not affect
the validity of the proceedings thus giving third parties full protection. 50 Where
costs are awarded against a spouse who instituted or defended legal proceedings
without the required consent, the court may, taking into account the interest of
the other spouse and the reasons for the want of consent, order that the costs
be recovered from the separate estate of the litigating spouse. If the litigating
spouse has no separate estate, the court may order that the costs be recovered

the Matrimonial Property Act 1984 op. cit. at p. 21-23. However, there is no provision in the Act to protect
a third party who knew or should reasonably have known that the transaction was in contravention of the
Act. In Amalgamated Bank 0/ South Africa Bpk v. Lydenburg Passasiersdientse BK 1995 (3) S.A. 314 (T),
it was held that if the third party was mala fide the transaction is void. Subsequently, the Supreme Court of
Appeal in Amalgamated Bank a/South Africa v. De Goede 1997 (4) S.A. 66 (SCA) overturned the decision
in Lydenburg:1 case on its facts but did not question the correctness of the ruling that such a contract entered
into with a mala fide third party is void. The general opinion of jurists in that country is in support of such
an outcome. See Cronje and Heaton op. cit. at p. 101 and Van Aswegen op. cit. at p. 146.
48

Under section. 20 of the South African Matrimonial Property Act 1984 a spouse may under certain circumstances
apply to the High Court for a division of the joint estate if the interest of that spouse in the common estate
is seriously prejudiced by the conduct or proposed conduct of the other spouse. See Leeb v. Leeb 1999 (2)
All S.A. 588 (N) at p. 597.

49

Very little use was made of this remedy in South Africa before the introduction of the statutory remedy in s. 20
of the Matrimonial Causes Act 1984. See Hahlo, op. cit. at p. 174.

50

See section. 13 (2).

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from the joint estate and an adjustment be effected in favour of the spouse who
should have consented to the litigation, upon the division of the joint estate. 51
Three exceptions are made in which a spouse may institute or defend legal
proceedings without the other's consent. These are:
(a) in respect ofhislher separate property;
(b) for recovery of damages, other than damages for patrimonial loss, by reason
of the commission of a delict against hislher person;52
(c) in respect of a matter relating to hislher separate profession, trade, occupation
or business.
It must be mentioned here, although not provided for in the Act, that the spouses
do not need each other's consent in a matrimonial dispute between them. Thus, if
the husband wishes to institute divorce proceedings against his wife he does not
need her consent. This exception is a product of the common law.53
Where a debt is recoverable from the joint estate, the spouse who incurred the debt
may be sued individually or both spouses may be sued jointly.54 Likewise, a debt
incurred for necessaries for the joint household is the responsibility of the spouses
and they can be sued jointly or severally.55 Finally, an application for the surrender
of the joint estate must be made by both spouses. 56 Similarly, an application for
the sequestration of a joint estate must be made "by both spouses." 57 There is a

51

See sections. 13 (3) and (4) read with ss. 10 (5) (6) and (7).

"This exception will enable a spouse to claim damages from the other spouse in respect of the pain and suffering
as a result of bodily injuries (non-patrimonial loss). At common law a spouse married in community of
property cannot recover damages for palrimonialloss form the other spouse on the basis that such damages
would be:. paid out of the joint estate into the joint estate. See the South African cases of Young v. Coleman
1956 (4) S.A. 213 (D) at p. 216 and Rohloffv. Ocean Accident and Guarantee Corp. Ltd. 1960 (2) S.A.
291 (A) at p. 298. The position has been modified by s. 18 (b) of the Matrimonial Property Act 1984 which
permits one spouse to claim damages from the other spouse in respect of damages other than patrimonial
loss. This is the same as provided by section 13 (I) (b) of the Abolition of the Marital Power Act.
"See the South African case of De Korte v. Ntlebi 1912 T.P.O. 790 at p. 792.
54

Section 13 (5). This provision represents a slight modification of the common law position. At c~mon law, a
debt arising from the delict of one of the spouses can be claimed from the joint estate even to the detriment
of the spouse who is not a party to the commission of the delict. See the South African cases of Erikson
Motors (Welkom) Ltd. v. Scholtz 1960 (4) S.A. 791 (0) and Opperman v. Opperman 1962 (3) S.A. 40.
Section 13 (5) will now enable the plaintiff to either recover the debt from the spouse at fault or from the
joint estate. Cj. section. 19 of the South African Matrimonial Property Act 1984 which allows the plaintiff
firstly, to recover the debt from the separate estate of the spouse at fault and secondly, if there is no such
estate, to recover from the joint estate.

55

Section 13 (6). See infra.

56

Section 13 (7). See the South African case of Du Toit v. Du Toit 1985 (3) S.A. 1007 (T) at p. 1008.

S?

Section 13 (8). This obviously is a mistake as the spouses cannot sequestrate property of which they are the
owners. It would have been more appropriate to use the words "against bath spouses." See s. 17 (4) of the
South African Matrimonial Property Act 1984 and Acar v. Pierce and Other Like Applications 1986 (2)
S.A. 827 (W) at p. 833.

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proviso in this latter event to the effect that no application for the sequestration
of the estate of a debtor shall be dismissed on the ground that such debtor's estate
is a joint estate if the applicant satisfies the court that despite reasonable steps
taken by him/her, he/she was unable to establish whether the debtor is married
in community of property. The same result will occur if the applicant is able to
satisfy the court that despite taking reasonable steps to find the name and address
of the spouse of the debtor the steps proved abortive. 58

4.4

Provisions regarding marriages out of community of property

4.4.1

Liability for household necessaries 59

Section 14 (1) makes spouses married out of community of property jointly


and severally liable to third parties for all debts incurred by either of them in
respect of necessaries for the joint household. This is a statutory enactment of the
exception to the general common law rule that husband and wife of a marriage out
of community of property are not liable for any of each other's debts. 60 Section 14
(2) gives a spouse who has contributed more than hislher share of the liability for
necessaries a right of recourse against the other spouse for the excess contribution.
This provision is also an affirmation of the common law position.

The position at common law with regard to liability for household necessaries was
that a married woman, irrespective of the type of matrimonial property regime
governing the marriage, has the capacity as manageress of the joint household,
to bind her husband and herself by contract for the acquisition of household
necessaries. In the case of a marriage in community of property, such a contract
will bind the joint estate and the husband and in case of marriage out of community
of property, the contract will bind the husband. A prerequisite for the exercise of
the power was that there must be a valid marriage and a joint household. 61 In
practice, the burden to pay for such necessaries invariably fell on the husband. 62
" For an illustration of the application of the proviso, see the South African case of De/kor (Pry) Ltd. v. Pienaar
1991 (3) S.A. 406 (W).
59

60
61

62

The concept of household necessaries is a relati ve one based on the particular circumstances of the spouses.
It generally consists of the everyday items which are necessary to housekeeping and it includes, inter
alia, food, clothing, medical and dental services. It is for the court to decide whether a particular item is a
household necessary and the onus is placed on the party alleging that it is to satisfy the court accordingly.
See the South African case of Reloomel v. Ramsey 1920 T.P.D. 37 I at pp. 377,380 and 381.
See the South African case of Goldblatt's Wholesale (Pry.) Ltd. v. Damalis 1953 (3) S.A. 730 (0).
See the South African cases of Excel! v. Douglas 1924 C.P.D. 472 at pp. 476-477 and 484 and Chamani v.
Chamani 1979 (4) S.A. 804 (W).
See L.E. Hall, "The liability of a husband for necessaries supplied to his wife," 52 South African Low Journal
(1935) and R. W. Lee, "A married woman's contract in relation to household necessaries," 2 Journal oj
Contemporary Roman-Du/c/z Law (1938), p.89.

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Section 14 has rectified this situation by making both spouses of a marriage out
of community of property jointly and severally liable for debts arising out of such
transaction. 63
With regard to the right of recourse against each other for excess contribution
made towards the purchase of household necessaries, the matter was limited at
common law to marriages out community of property and this is retained under
section 14 (2) of the Act. In marriages in community of property, all costs and
debts are shared equally and as such a right of recourse was unnecessary. Both
spouses in the former marriage have a duty to contribute pro rata according to his/
her means, to the cost of household necessaries. Either spouse could recover from
the other, by way of a right of recourse, any excess amount spent on household
necessaries. 64 Is there a time limit within which the right of recourse is to be
exercised? The subsection does not stipulate any time frame within which the
action can be brought. Consequently, the right can be exercised either during the
marriage, on dissolution of the marriage or subsequent to such dissolution. 65 There
is however a possibility of the right being prescribed under the Prescription Act
1959 once the marriage has come to an end.
4.4.2

Joint acquisition of property

Section 15 provides that where spouses married out of community of property


acquire property jointly, the provisions of Part III of the Act relating to marriages
in community of property shall apply to such acquisition as if the spouses were
married in community of property. The section further provides for a right of
recourse against the other spouse in so far as a spouse has contributed to the
acquisitien of property by the other spouse.
This provision is an innovation to the principle of joint ownership of spouses
married out of community of property as it imposes, inter alia, equal powers of
management of the joint estate on the spouses as well as the capacity to perform
juristic acts with regard to the joint estate without the consent of the other spouse.
Hitherto, there is no presumption of joint ownership between these spouses. The
general rule is that the property rights of the spouses remain unaffected by the

.J

b4

See section 13 (6) which provides that spouses married in community of property should be sued jointly and
severally for such debts. thus bringing parity to both marriages in or out of community of property with
regard to de bts for household necessaries.
For an analysis of the right of recourse at common law. see J. Sinclair. "Household necessaries: A necessary
amendment" 94 South African Law Journal (1977), at p. 449 .

, See the South African case of Halgreen v. Halgreen 1977 (3) S.A. 34 (T). Obviously, the exercise of the right
during the subsistence of the marriage may undermine its stability.

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marriage. 66 If a spouse wishes to claim an interest in the other spouse's property


he/she must make a case for such entitlement. This may be done by proof of
universal partnership with each other, acquisition of property in joint ownership
or pooling of savings in some other way.67 If a case is made for an interest in the
other spouse's property, in dividing such property, the court will take into account
the respective contribution of the spouses towards the acquisition of the said
property.68 The question is whether the imposition of the administrative trappings
of community of property on the acquisition ofjoint property by spouses married
out of community of property will do away with the ascertainment ofthe respective
contributions in the event of division of the property? The answer to this question
will seem to be that if there is going to be equal and current administration of the
joint property as envisaged by section 15, then a fortiori, there should be equal
sharing of the property in the event of a division. If this is the legislative intent
behind section 15 then this will be a radical departure from the nonnal principles
of co-ownership between spouses married out of community of property.
5.

DOMICILE OF MARRIED WOMEN AND DOMICILE AND


GUARDIANSHIP OF MINOR CHILDREN

The domicile 69 of married women and minor children as well as the guardianship
of the latter are not consequences attendant to the exercise of the marital power.
Consequently, such matters should have no place in a statute dealing with the
abolition of the marital power. Nevertheless, the legislature has found it expedient
to include them in the statute presumably with the view to further enhance the
liberation of the married woman from the shackles of her husband's power over
her person. 70 Part V of the Act therefore deals with amendments to the common
law rules relating to a wife's domicile and the domicile and guardianship of minor
chndren.
66

See Rabantheng v. Rabantheng [1988] B.L.R. 260 at p. 264 per Hallchurch J.

b7

See Hahlo, op. cit. at p. 290 .

69

70

See Rabantheng v. Rabantheng op. cit at p. 265 where a wife's financial contribution towards the purchase of
the matrimonial home was adjudged to be one third of the equity of the matrimonial home.
In general terms, a person's domicile is the country in which he has his permanent home. Detailed rules are
necessary however, to determine what degree of permanency is reqUired, and to attribute domicile to those
persons who do not in fact have a permanent home, for every person must at all times be domiciled in a
country, but in not more than one country. For the application of some of the principles for ascertaining the
domicile of persons in Botswana, see A.J.a.M. Sanders, 'The expatriate contract-worker and the acquisition
of a domicile of choice - The Botswana position" 100 South African Law Journal (1983) , p. 705 and 1.
Kiggundu. "The law of domicile in Botswana: The need for reform." 2 African Journal of International and
ComparaTive Law (1990), at p. 626.
The continuance of the principle of unity of matrimonial domicile in England was castigated by Lord
Denning in the English case of Gray v, Formosa [1963] P 259 at p, 267 as "the last barbarous relic of the
wife's servitUde," The principle was subsequently abolished by s. I (1) of the Domicile and Matrimonial

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Domicile of married women and minor children

Section 16 provides that the domicile of a married woman shall not by virtue of
the marriage be considered to be the same as that of her husband, but shall be
ascertained by reference to the same factors as apply to any individual capable
of acquiring a domicile of choice. This provision abolishes the long standing
common law principle of the unity of matrimonial domicile by which a married
woman automatically takes the domicile of her husband. 71 The principle applied
immediately on marriage irrespective of the matrimonial property regime
governing the marriage. The rationale behind the principle was to maintain the
unity of domicile within the family to avoid possible problems of choice of law
if the husband and wife were to have different and conflicting personal laws. The
application of the principle in some situations created difficulties, especially for
wives. For example, a wife who wished to divorce her husband needed to show,
if she had not been continuously resident in Botswana for at least three years,
that she was domiciled in Botswana. Since her domicile was inextricably bound
with that of her husband, if the husband were to change his domicile before the
commencement of the suit, the High Court will lack the requisite jurisdiction to
hear her suit. 72 Consequently, there were calls for the unity of domicile of married
persons to be scrapped and replaced with one in which each spouse acquires a
domicile as if he/she is not married. 73 The provision in section 16 has belatedly
answered this call. 74 Furthermore, section 7 (1) (b) of the same Act which
gives a wife an alternative basis for the invocation of the court's jurisdiction in
divorce matters should be amended to make it gender neutral to allow for its use
by either spouse who cannot prove domicile in Botswana. This will be on the
assumption that there is still a need for an alternative basis for invoking the High
Court's jurisdiction in divorce matters despite the abolition of the principle of
unity of matrimonial domicile. It is submitted that there is still a need for such an
alternative basis for the invocation of the court's jurisdiction. This is because of
the difficulties associated with the animus manendi requirement for the acquisition
of a domicile of choice and other factors such as the revival of the ~omicile of

Proceedings Act 1973. South Africa abolished the principle in 1992 by the coming into force on I August
1992 of the Domicile Act 3 of 1992. See E. Schoeman, "The abolition of the wife's domicile of dependency:
A lesson in history," 58 Journal of Contemporary Roman-Dutch Law (1995). at p. 488.
71

See s. 7 (I) of the Matrimonial Causes Act 1973, Egner v. Egner [1974]2 B.L.R. 5 at pp. 6, 7 and Nku v. Nku
[1998] B.L.R. 187 atpp. 191-192.

71

See note 63 supra.

7J

See for example. Kiggundu, op. cit. at pp. 638-639.

74

Section 16 has now rectified the erroneous assumption said by Aguda C] in Egner v. Egner [1974] 2 B.L.R. 5
at p. 7 to underlie section 7 (I) (a) of the Matrimonial Causes Act 1973.

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origin in appropriate circumstances which generally prevent proof of change of


domicile. 75
Section 17 makes alteration to the common law principle for the acquisition of
domicile of dependency by minor children. It provides that the domicile of a
minor child shall be the place with which the child is most closely connected. 76
Notwithstanding this generality, it is further provided that where the child resides
with hislher parents or with one of them, it shall be presumed, unless the contrary
is proved, that the child's domicile is where he/she so resides. At common law, a
minor child takes as hislher domicile of dependency the domicile ofhislher father
if legitimate and hislher mother if illegitimate. This principle, like that of unity of
matrimonial domicile, created difficulties in its application. For instance, if the
mother and father are divorced and the minor child is living with his mother, his
domicile of dependency still continued to be that of his father. The provision in
section 17 will free the minor from such rigid dependency and allow the practical
reality of the situation the minor finds himselflherselfin to determine his domicile
at the relevant time.

5.2

Guardianship of minor children

At common law, the natural guardian of a child born in wedlock (legitimate child)
is hislher father, while that of a child born out of wedlock (illegitimate child) is
hislher mother. 77 Whilst the common law recognized that a mother may share the
parental power over legitimate children with the father, it provided that the rights
of the father were superior to that of the mother. For the mother, sharing was
confined to custody of the child's person and the control of his daily life. 78 Thus, it
is the father who, as natural guardian, acts on behalf ofthe child, administered his
property and supplemented any deficiency in his legal capacity. Section 18 of the
Act seeks to confer equal guardianship over minor children on both parents and
stipulates certain situations in which the consent of both parents will be required
to effect matters pertaining to the children. Can it be said that "parents" in this
context include a father who has admitted paternity or has been adjudged by a
court to be the natural father of an illegitimate child? The wording of section 18
75

See Jeffreys v. Jeffreys [1973J I B.L.R. 42, Kenyon v. Kenyon and Jenkins [1974J I B.L.R. 2, Egner v. Egner
op. eft. Lincoln v. Lincoln [1974J 2 B.L.R. 44 and Nku v. Nku op. cit.

7.

A minor child for this purpose is one who has not attained the age of 21 years in terms of s. 49 of the
Interpretation Act 1984.

77

See the South African cases of Van Rooyen v. Werne'r (1892) 9 S.c. 425 at p. 431, Docrat v. Bhayat 1932
T.P.D. 125 at p. 127 and Dhanabakium v. Subramanian 1943 A.D. 160 at p. 166. Guardianship and custody
together constitute the parental power over children.

78

See Van Rooyen v. Werner op.cit. at p. 428-431 and CaW::. v. Calit: 1939 A.D. 56 at pp. 61-63.

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, suggests that this will not be the case. In the context of the Act, parents should be
taken to denote those married to each other and a father of an illegitimate child
who presently has no inherent right of access or custody of such a child cannot be
taken to come within the ambit of section 18 of the Act. 79

6.

CONCLUSION

The struggle for gender equality in Botswana has been a long and winding road. The
patriarchal family structure of Tswana society has for long been a stumbling block
to reforms in family law. This was evident in the debate of the Bill in Parliament
where some members of Parliament opposed it on the basis of it being out of step
with Tswana tradition. so For the Bill to have overcome the patriarchal stumbling
block and made it to the statute books is a testimony that Parliament is shedding
its conservative image. The provisions of the Act will generally improve the legal
position of married women by giving them equal say with their husbands in the
making of decisions concerning the marriage whilst allowing them as individuals
to exercise certain juristic acts free from the constraints which hitherto impede
them. The abolition of the position of the husband as head of the family addresses
the issue of equality of spouses in line with the fundamental rights enshrined in
sections 3 and 15 of the Constitution. S! Although the abolition has been criticised
in some quarters,82 the position has hitherto been largely devoid of any significant
practical consequence. The freeing of a wife from the shackles of her husband's
domicile is another step in the improvement of the status of women vis vis their
male counterparts whilst the imposition of joint administration ofjointly acquired
property by spouses of marriage out of community of property is an innovation
which will likely affect the ascertainment of their respective contributions in the
event of division of the joint property. However, some of the provisions of the
Act will create problems of interpretation as they pose more questions than they
provide answers. The consent provisions in section 7, for example, are not specific
enough to enable them to operate without difficulties. The omission in section 10

79

80

81

82

See Mfundisi v, Kabelo Misca No, 5412002 (8 August 2003) High Court. Lobatse, (Unreported), where
Chatikobo], approving a dictum from the Zimbabwean case of Douglas v. Meyers 1987 (I) S.A, 910 at p.
914 per Muchechetere 1., confirmed the common law position that such a father has no inherent right to
access or custody of an illegitimate child.
See the Mmegi newspaper of 10 December 2004 at p, 9.
Section 3 of the Constitution guarantees fundamental rights and freedoms of the individual whilst section 15
generally protects the individual from discrimination. In Attorney-General v, Dow [1992] B.L.R, 119, the
Court of Appeal interpreted section 3 as complementing section IS and guaranteeing the right to equal
treatment. See generally CM. Fombad, "The constitutional protection against discrimination in Botswana",
International and Comparative Law Quarterly (2004), p. 139.
See "Abolition of Marital Power Bill liberates the already liberated women" in Botswana Ga:ette, 16 February
2005 at p, 16 and "A legal coup against men" in the Mmegi, 10 December 2004 at p, 9,

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to state categorically the legal effect of a spouse performing an act with regard to
the joint estate without the requisite consent may pose difficulties of interpretation.
Furthermore, it is regrettable that customary and religious marriages have been
excluded from the ambit of the Act. As stated earlier, women in these marriages
face the same problems, perhaps to a greater extent, than their counterparts in
statutory marriages and deserve to benefit from the provisions of the Act. Whether
or not the Act will henceforth enhance the relationship between married couples
or will tum out to be a statutory solution in search of a problem is a matter for
future evaluation. What is certain is that the provisions of the Act have created a
new dimension in marital relationship as they are geared towards enhancing the
conditions of a wife in the applicable marriages in line with regional and global
trends. Since the provisions of the Act are similar to that of the South African
Matrimonial Property Act 1984 to which references have been made in this paper,
it is possible that the courts will seek guidance from the interpretation of the
provisions of that Act in dealing with some of the vague and obscure provisions
of the Botswana Act. Furthermore, opportunity exists under section 19 of the Act
for the Minister of Labour and Home Affairs in making regulations for the better
carrying out of the objects and purpose of the Act, to rectify, where possible, some
of the shortcomings of the Act in order to advance the requisite equality between
a husband and his wife which hitherto has been emasculated by the tyranny of the
marital power. The ball is in the court of married couples to utilise the provisions
of the Act to their mutual benefit.