Married Persons Property

Link to law: http://www.elaws.gov.bw/desplaylrpage1.php?id=224

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[Chap2903]
[Ch2903s1]1. Short title

This Act may be cited as the Married Persons

Property Act.

[Ch2903s2]2. Interpretation 11 of 2008, s. 3(a)

In this Act, unless the context otherwise

requires-

"Registrar" means the Registrar

of Deeds.

[Ch2903s3]3. Community of property excluded 11 of 2008, s. 3(b)

(1) Community of property and community of profit

and loss or any liabilities or privileges resulting therefrom shall not attach

to any marriage solemnized between spouses one of whom is domiciled in

Botswana, unless such spouses have, by an instrument in writing, signed by each

of them prior to the solemnization of their marriage and in the presence of two

persons, one of whom shall be an administrative officer or justice of the peace

or a commissioner of oaths, who shall subscribe thereto as witness, express

their wish to be exempt from the provisions of this Act.

(2) Such instrument shall be as nearly as possible

in the form set out in the First Schedule and shall be registered in the Deeds

Registry within 90 days after the execution thereof and shall not be valid

unless so registered:

Provided that if any instrument submitted for registration

within the said period of 90 days has on the face of it any defect the

Registrar shall return it to the person by whom it was submitted setting out

the defects and requiring the instrument to be returned to him within such

period of time, not being less than 60 days, as he may in his discretion allow,

with such defects corrected; if the instrument is returned to the Registrar

within the time allowed by him with the defects corrected, then it shall be

registered by the Registrar and shall be valid notwithstanding that it was

registered more than 90 days after execution.

[Ch2903s4]4. ...... 11 of 2008, s. 3(c)

[Ch2903s5]5. Deeds to specify allocation of property

(1) Every notarial deed executed in accordance

with section 4 shall specify in detail the allocation to each spouse executing

such deed of his or her half share of the property held in community at the

date of execution thereof, or such other division thereof as they may have

agreed upon.

(2) Where any notarial deed has allocated

immovable property to a spouse in whose name such property is not registered at

the time of such allocation, a deed transferring such property to such spouse

shall be executed and registered in the Deeds Registry within six months of the

registration of the notarial deed in accordance with section 4.

[Ch2903s6]6. Registration of instrument or notarial deed

Where an instrument executed in accordance with

section 3 or a notarial deed executed in accordance with section 4 is presented

for registration in the Deeds Registry, a signed original of such instrument or

notarial deed, as the case may be, for filing in the Registry as the Registry

duplicate together with two further originals or glosses or copies certified by

a notary public shall be lodged.

[Ch2903s7]7. Proprietary consequences of marriages of persons subject to

customary law

(1) Subject to the provisions of this section and

of the Dissolution of Marriages of persons subject to any Cap. 29:05 Botswana

Customary Law (Disposal of Property) Act, notwithstanding that the matrimonial

domicile of a marriage between persons subject to a Botswana customary law (not

being a marriage under any customary law) in Botswana such marriage shall not

affect the property of the spouses which shall be held, may be disposed of,

and, unless disposed of by will, shall devolve according to customary law.

(2) Notwithstanding subsection (1), the spouses in

a marriage between persons subject to customary law may, where the matrimonial

domicile is in Botswana, prior to the solemnization of the marriage or where

such marriage was solemnized prior to the commencement of this Act, by

instrument in writing, signed by each of them and in the presence of two

persons, one of whom shall be an administrative officer or justice of the peace

or a commissioner of oaths, who shall subscribe thereto as witnesses, express

their intention to be exempt from the provisions of subsection (1).

(3) Such instrument shall be as nearly as possible

in one of the forms set out in the Second Schedule and shall specify whether

the spouses wish to avail themselves of the provisions of this Act by excluding

community of property and community of profit and loss and the marital power or

otherwise and if they do so avail themselves of such provisions then community

of property and of profit and loss and the marital power shall be so excluded

in accordance with the provisions of section 3(1); if they do not so avail

themselves, the said instrument shall have the effect of an instrument executed

under section 3.

(4) An instrument executed in accordance with this

section shall be registered in the Deeds Registry within 90 days after the

execution thereof and shall not be valid unless so registered:

Provided that if any instrument submitted for

registration within the said period of 90 days has on the face of it any defect

the Registrar shall return it to the person by whom it was submitted setting

out the defects and requiring the instrument to be returned to him within such

period of time, not being less than 60 days, as he may in his discretion allow

with such defects corrected; if the instrument is returned to the Registrar

within the time allowed by him with the defects corrected, then it shall be

registered by the Registrar and shall be valid notwithstanding that it was not

registered within 90 days of execution.

[Ch2903s8]8. Validation of certain instruments

(1) Any instrument which, prior to 5th November,

1971, has been registered by the Registrar after the expiry of 28 days from the

execution thereof shall, subject to the provisions of subsection (2), be valid

notwithstanding that it was registered more than 28 days after execution.

(2) Any instrument which, prior to 5th November,

1971, has been registered by the Registrar but which has on the face of it any

defect shall be returned by the Registrar to the person by whom it was

submitted setting out the defects and requiring the instrument to be returned

to him within such period, not being less than 60 days, as he may in his

discretion allow, with such defects corrected.

(3) If the instrument is returned to the Registrar

within the time allowed by him with the defects corrected, then it shall be

re-registered and shall be valid notwithstanding that it was re-registered more

than 28 days after execution.

[Ch2903s9]9. Section 16 of Cap. 33:02 not to apply to instruments under

this Act

Section 16 of the Deeds Registry Act shall not

apply in relation to any instrument attested under this Act.

FIRST SCHEDULE

(Section 3)




We, the undersigned, A.B. of

......................................... and C.D. of

.................................. do hereby solemnly express our wish to be

that our contemplated marriage with each other shall be in community of

property and exempt from the provisions of the Married Persons Property Act.






(signed)






A.B. ..........................................................













C.D.

.........................................................






Witnesses:

1.













2.













N.B. One

witness must be an administrative officer, a justice of the peace or a

commissioner of oaths.





SECOND SCHEDULE 11 of 2008, s. 3(d).

(section 7)

Form A




We, the undersigned, A.B. of

...................................................................... and

C.D. of

......................................................................... do

hereby solemnly express our wish to be:


(a) that

the proprietary consequences of our contemplated marriage should be regulated

by the common law and not the customary law and in consequence we wish to be

exempt from the provisions of section 7(1) of the Married Persons Property

Act; and


(b) to

avail ourselves of the provisions of the said Act by excluding community of

property and community of profit and loss.






(signed)






A.B

...........................................................













C.D

............................................................






Witnesses: 1.













2.













N.B. One

witness must be an administrative officer, a justice of the peace or a

commissioner of oaths.





Form B




We, the undersigned, A.B. of

...................................................................... and

C.D. of

......................................................................... do

hereby solemnly express our wish to be:


(a) that

the proprietary consequences of our contemplated marriage should be regulated

by the common law and not the customary law and in consequence we wish to be

exempt from the provisions of section 7(1) of the Married Persons Property

Act; and


(b) that

we do not desire to avail ourselves of the provisions of the said Act as

aforesaid.






(signed)






A.B

...........................................................













C.D

............................................................






Witnesses: 1.













2.













N.B. One

witness must be an administrative officer, a justice of the peace or a

commissioner of oaths.