It's Wedding Time! - but what about the legal bits?
“Marriage is a matter of more worth / Than to be dealt in by attorneyship” (Shakespeare)
If you are busy planning for marriage, you will have a long “To Do” List to work through. Venue, invites, catering, flowers, service, the list goes on…
But no matter how complicated your Wedding Plan gets, make sure that “Understand the Legal Bits” is high on your priority list.
Understanding and managing the legal consequences of marriage in Botswana remains absolutely vital.
What Community of Property do we choose?
In Botswana, you can choose whether to be married “In Community of Property” or “Out of Community of Property”. This is a critical decision. Getting professional assistance is essential because your choice involves preference, circumstance, personal and financial status.
Which one you choose now (and you must choose before you marry) will affect you throughout your marriage, and it will affect everyone when your marriage eventually comes to an end (whether by divorce or death – both grim prospects, but realities that must be faced).
Marriage in community of property
All of your assets and liabilities are merged into one “joint estate” in which each of you has an undivided half share. On divorce or death the joint estate (including any profit or loss) is split equally between you, regardless of what each of you brought into the marriage or contributed to it thereafter.
Marriage out of community of property
Your own assets and liabilities, both what you bring in and what you acquire during the marriage, remain exclusively yours to do with as you wish.
In South Africa there is a system known as the “accrual system”, but in Botswana you need a specific ANC (antenuptial contract) to agree this.
What’s the default Marriage regime in Botswana?
In Botswana, the default is “Out of Community of Property”. This is different to South Africa, where the default is “In Community of Property”.
Do we need an ANC (antenuptial contract)?
Whether you need an ANC (antenuptial contract), and if so, what should be in it, will depend on which “marital regime” you choose. If you want to be married out of community of property with the accrual system, you’ll need an ANC.
That way, the assets and liabilities you bring into the marriage remain solely yours. On divorce or death you share equally in the “accrual” (growth) of your assets during the marriage.
Can I change my Marital Property Regime?
Already married? Botswana Law allows you to change your marital property regime once in each direction - provided both spouses agree!
Are our wills in order?
Marriage is one of those life events that focuses the mind on how important it is to have valid Wills in place. Dying without a Will in Botswana causes massive problems for your loved-ones.
Review Your Botswana Will
Especially if you are married In Community of Property, your existing Will needs immediate review. Of course, your Last Will and Testament is only the first step in a full estate planning exercise, but it is the foundational step, so prioritise it.
Don’t be tempted to procrastinate on this one – as the old saying has it “Death Knocks at All Doors”, and often it knocks without warning. There’s no other way to ensure that your loved ones will be fully protected and catered for after you are gone.
