My partner wants marriage out of community of property

Gaone Monau | Tuesday February 1, 2022 06:00

Dear Anonymous

Marital proprietary regimes in Botswana and worldwide seek to govern the property rights of the spouses. The legal views expressed here largely stem from Botswana laws on marriage.

For the sake of brevity and simplicity, I will generalise and not specifically quote laws. Marriage in community of property basically means that all the assets and liabilities that the parties had at the time of solemnisation and during the tenure of such marriage will be deemed as part of the joint estate. Nevertheless, if either of the spouses has any property that was bequeathed or donated to them prior to the marriage, the law makes provision for such property to not form part of the joint estate if the owner of the said property takes legal steps to enforce that prior to the marriage. Parties in a marriage in community of property have equal powers in terms of financial decisions made in the home.

They mostly need each other’s written consent to obtain loans or dispose off assets that form part of their joint estate. In the event of debt, creditors can attach any of the property of the parties that forms part of their joint estate. Upon divorce, partners share all the properties and liabilities accrued during the tenure of the marriage equally. However, where there is adequate proof that one of the parties got loans without the consent of the other during the subsistence of that union, the party who unilaterally obtained the loan shall be solely responsible for paying out the said loan upon divorce.

The partner whose consent was not obtained will therefore be absolved from paying out the loan during divorce. With marriage out of the community of property, all the assets and liabilities that the parties had prior to the marriage do not form part of the joint estate. Parties do not legally need each other’s’ consent in dealing with their separate estates.

If one of the partners is in debt, creditors cannot attach separate property that belongs to the spouse who is debt-free. Assets jointly accrued by the parties during the subsistence of a marriage out of community of property form part of the joint estate if such a marriage is subject to the accrual system. Upon divorce parties are entitled to an equal share of the assets jointly accrued during their union. Parties may, however, exclude the accrual system from their marriage through legal instruments.

In such an instance the spouses will only be entitled to assets accrued in their name upon divorce or death of either spouse. Marriage out of community of property is usually ideal for entrepreneurs for the reason that some entrepreneurs usually take huge risks that may jeopardise the joint estate of the parties if their projects fail - if the entrepreneurial spouse’s assets are attached by creditors, the non-entrepreneural’s spouse’s assets are at least shielded by law from being attached.

It is noteworthy to mention that despite the advantages and disadvantages of all the aforementioned marital proprietary regimes, the future and bedrock of any marriage that is worthy of its promise is to some extent dependent on both parties’ ability to interweave each other in major financial decisions they take despite their chosen marital proprietary regime. Spouses may still be married in community of property and make transactions that legally require the consent of each other without each other’s knowledge or consent.

On the other hand, lovers may be married out of community of property and still inform and consult their partners on any major financial decisions despite not being legally bound to seek their partner’s consent. The values and belief systems of each partner are therefore what essentially govern their financial decisions and how much they include their partner in such decisions despite the marital proprietary regime they have entered into.

• Gaone Monau is an attorney and Motivational speaker on the areas of confidence building, stress management, relationships, self-discovery and gender-based violence. For bookings, motivational talks, questions or comments on the aforesaid areas contact +26774542732 or laboutit22@gmail.com. Her Facebook page is Be Motivated with Gaone.