The bulk of the matrimonial property regimes operating in Botswana
were inherited from the country's colonial past. Since independence
there ha'> not been any realistic attempt to reform them. The thesis set
out to appraisal the legal regimes governing the determination of
matrimonial property on divorce to ascertain their efficacy in realising
the legitimate aspiration of married couples. Comparisons were made
with similar countries to determine how these have tackled problems
relating to determination of matrimonial property on divorce.
The study found that where there is a dispute about matrimonial
property in marriages out of community, the courts have no discretion
to readjust the rights of the parties. This situation adversely affect nonworking
wives who spent most of their time looking after their
husbands and children without being able to acquire capital assets.
Recognition is not given to such domestic contribution to the welfare
of the family. It was also found that the exercise of the marital power
by husbands of marriages in community of property deprives wives of
those marriages the right to administer the joint estate. The patriarchal
nature of customary law, which governs the majority of disputes about
matrimonial property, discriminates against women.
Consequently, the following, inter alia, are suggested as reform
measures.
(a) The courts should be g1ven a wide discretionary power,
circumscribed by statutory guidelines, to reallocate matrimonial
property on divorce irrespective of the matrimonial property regime that
governs the marriage. TI1e underlying principle should be equality of
sharing but this may be departed from where the circumstances of the
particular case warrant it
(b) A spouse's domestic contribution towards the welfare of the family
should be recognised.
(c) The marital power of husbands should be abolished.
(d) The provisions of the Matrimonial Causes Act should be made
applicable to customary marriages. / Private Law / LL.D.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:umkn-dsp01.int.unisa.ac.za:10500/15840 |
| Date | 06 1900 |
| Creators | Quansah, E. K. |
| Contributors | Heaton, J. |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (lxxxvi, 611 pages) |
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