Matrimonial Causes

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[Chap2906]CHAPTER 29:06

MATRIMONIAL CAUSES

ARRANGEMENT OF SECTIONS

SECTION



1. Short title

2. Interpretation

3. Non-application to customary marriages

4. Power to grant relief limited to

monogamous marriages

5. Subordinate matrimonial courts

6. Reservation of question of law

7. Jurisdiction in matrimonial cases

8. Jurisdiction in presumption of death

9. Application pendente lite

10. Jurisdiction to set aside order for

judicial separation

11. Jurisdiction in reconvention

12. Orders made by subordinate matrimonial

court issuable by Registrar of High Court

13. Property rights of spouses

14. Breakdown of marriage to be sole ground

for divorce

15. Proof of breakdown

16. Power to rescind decree nisi in

certain cases

17. Financial protection for defendant in

certain cases

18. Rules may enable certain agreements or

arrangements to be referred to the court

19. Alleged adulterer as a party

20. Power to allow intervention on terms

21. Restriction on actions within two years

of marriage

22. Action for nullity and grounds thereof

23. Abolition of the action for restitution

of conjugal rights

24. Presumption of death and dissolution of

marriage

25. Maintenance in cases of divorce and

nullity of marriage

26. Declarations of legitimacy, etc.

27. Alimony in cases of judicial separation

28. Custody and maintenance of children

29. Power of subordinate matrimonial court

to order service outside the jurisdiction

30. Appeals

31. Power of Chief Justice to make rules



Act 1, 1973,

Act 11, 2008.

An Act to provide for the designation of certain Magistrates' Courts

as subordinate matrimonial courts: to amend the grounds for divorce and

judicial separation; and to provide for matters incidental thereto.

[Date of

Commencement: 9th February, 1973]

[Ch2906s1]1. Short title

This Act may be cited as the Matrimonial Causes

Act.

[Ch2906s2]2. Interpetation

In this Act, unless the context otherwise

requires-

"court" includes the High Court

and a subordinate matrimonial court;

"Registrar" means the Registrar

of the High Court of Botswana;

"subordinate matrimonial court"

means a court held by a judicial officer appointed under section 5.

[Ch2906s3]3. Non-application to customary marriages

This Act shall not apply to any marriage

contracted in accordance with customary law.

[Ch2906s4]4. Power to grant relief limited to monogamous marriages

Nothing in this Act shall authorise any court to

pronounce a decree of divorce, nullity, judicial separation or presumption of

death and dissolution of marriage or to make any other order than an order

dismissing an action unless the marriage to or in respect of which the decree

or order relates was a monogamous marriage.

[Ch2906s5]5. Subordinate matrimonial courts

(1) The President may, on the recommendation of

the Chief Justice by order published in the Gazette, appoint any

judicial officer appointed by the Judicial Service Commission to hold a court

(hereinafter called a "subordinate matrimonial court") for the

exercise of the jurisdiction and powers conferred by this Act in respect of

such area or areas as may be specified in such order.

(2) Subject to subsections (3), (4) and (5), a

subordinate matrimonial court shall have the same jurisdiction as the High

Court.

(3) A subordinate matrimonial court shall have no

jurisdiction as to the validity or otherwise of any marriage or divorce and

shall have no power to make any order of presumption of death and dissolution

of marriage.

(4) If, during the pleadings prior to, or at the

hearing of, any action by a subordinate matrimonial court any question or

matter arises in relation to the validity or otherwise of any marriage or

divorce of any of the parties to the action, the subordinate matrimonial court

shall either-

(a) refer

such question or matter to the High Court by way of case stated for

determination by the High Court;

(b) adjourn

the case pending the decision on such question or matter by the High Court; and

(c) on

receiving the determination of the High Court allow pleadings to continue or

proceed with the hearing of the case, whichever is appropriate, in accordance

with such determination; or

(d) if it

considers that it would be in the interest of the parties, transfer the entire

case to the High Court for hearing and determination.

(5) A subordinate matrimonial court shall exercise

jurisdiction under this Act only-

(a) if both

plaintiff and defendant are ordinarily resident within its jurisdiction; or

(b) where

one of the parties is not so resident, if a consent to jurisdiction is filed by

or on behalf of the non-resident party.

[Ch2906s6]6. Reservation of question of law

(1) A subordinate matrimonial court may, on its

own motion or at the request of any party to the action, reserve for the

opinion of the High Court any question of law which arises upon the hearing of

the action by such subordinate matrimonial court and shall adjourn the action

pending receipt of the determination of the High Court.

(2) The question of law so reserved shall be

transmitted to the High Court in the form of a special case stated.

(3) Upon receipt of the determination of the High

Court, the subordinate matrimonial court shall determine the issues of the

action in accordance with such determination.

[Ch2906s7]7. Jurisdiction in matrimonial cases

(1) 11 of 2008, s. 4(a) A court shall

have jurisdiction to try an action instituted by one spouse against the other

for divorce or judicial separation if, at the date of the institution of

proceedings either spouse is domiciled in Botswana or has been resident within

Botswana for a continuous period of three years immediately preceding the date

of the institution of proceedings.

(2) For the purposes of subsection (1) proceedings

shall be deemed to be instituted on the date on which the summons is issued or

if the action is preceded by an application under the provisions of section 9,

on the date on which such application is filed.

[Ch2906s8]8. Jurisdiction in presumption of death

11 of 2008, s. 4(b) The High Court

shall have jurisdiction in proceedings for presumption of death and dissolution

of marriage and for nullity under this Act if the plaintiff was domiciled in

Botswana at the date of the action, or was resident in Botswana at the date of

the action and has been ordinarily resident in Botswana for the period of three

years immediately preceding the date of the petition.

[Ch2906s9]9. Application pendente lite 11 of 2008, s. 4(c).

A court with jurisdiction to try an action for

divorce or judicial separation shall also have jurisdiction to hear an

application by a spouse who is a party or an intending party to such action

before the said court-

(a) for

leave to sue in forma pauperis;

(b) for an

interdict pending the action;

(c) for an

order for contribution towards costs; or

(d) an

order or maintenance pendente lite.

[Ch2906s10]10. Jurisdiction to set aside order for judicial separation

Any court with jurisdiction to try an action for

judicial separation shall also have jurisdiction to set aside an order of

judicial separation insofar as it may be necessary to set aside such order before

a fresh action may be instituted or a divorce granted.

[Ch2906s11]11. Jurisdiction in reconvention

Any court with jurisdiction to try an action for

divorce or judicial separation shall also have jurisdiction to try any claim in

reconvention for divorce or judicial separation as if it were a claim in

convention.

[Ch2906s12]12. Orders made by subordinate matrimonial court issuable by

Registrar of High Court

(1) Immediately upon the conclusion of an action

heard by a subordinate matrimonial court such court shall transmit to the

Registrar-

(a) its

complete original record of the case so heard; and

(b) the

judgment of the subordinate matrimonial court upon the case heard.

(2) Upon receipt of the case record and judgment

the Registrar shall thereupon draw up and sign an order in terms of the

judgment made by the subordinate matrimonial court.

(3) Such order made under subsection (2) shall be

the official record of the determination of the action by the subordinate matrimonial

court.

(4) The original record of the action transmitted

to him shall be retained by the Registrar as if it were a record of the High

Court.

[Ch2906s13]13. Property rights of spouses

(1) Any court which tries an action for divorce or

for judicial separation under this Act shall also have jurisdiction to make an

order-

(a) determining

the mutual property rights of the husband and the wife;

(b) concerning

the custody, guardianship and maintenance of any minor children born to the

marriage subsisting between the parties; and

(c) varying

an order made under paragraphs (a) and (b):

Provided that, where the value of the property in

dispute or the amount claimed exceeds P2000, a subordinate matrimonial court

may mero motu, and shall on the application of either spouse, transfer

such application for an order under this section to the High Court and

thereafter all proceedings which have previously been taken in such action in

the subordinate matrimonial court shall be deemed to be proceedings taken in

the High Court.

(2) The High Court shall have full power,

jurisdiction and authority to review any order made by a subordinate

matrimonial court under subsection (1) and may set aside, vary or correct any

such order.

[Ch2906s14]14. Breakdown of marriage to be sole ground for divorce

After the commencement of this Act the sole ground

on which an action for divorce may be presented to the court by either party to

a marriage shall be that the marriage has broken down irretrievably.

[Ch2906s15]15. Proof of breakdown

(1) The court hearing an action for divorce shall

not hold the marriage to have broken down irretrievably unless the plaintiff

satisfies the court of one or more of the following facts, that is to say-

(a) that

the defendant has committed adultery and the plaintiff finds it intolerable to

live with the defendant;

(b) that

the defendant has behaved in such a way that the plaintiff cannot reasonably be

expected to live with the defendant;

(c) that

the defendant has deserted the plaintiff for a continuous period of at least

two years immediately preceding the commencement of the action;

(d) that

the parties to the marriage have lived apart for a continuous period of at

least two years immediately preceding the commencement of the action and the

defendant consents to a decree being granted.

(2) On an action for divorce it shall be the duty

of the court to inquire, so far as it reasonably can, into the facts alleged by

the plaintiff and into any facts alleged by the defendant.

(3) If the court is satisfied on the evidence of

any such fact as is mentioned in subsection (1), then, unless it is satisfied

on all the evidence that the marriage has not broken down irretrievably, it

shall grant a rule nisi for divorce.

(4) For the purposes of subsection (1)(c)

the court may treat a period of desertion as having continued at a time when

the deserting party was incapable of continuing the necessary intention if the

evidence before the court is such that, had that party not been so incapable,

the court would have inferred that his desertion continued at that time.

(5) For the purposes of this Act a husband and

wife shall be treated as living apart unless they are living with each other in

the same household.

(6) Provision shall be made by rules of court for

the purpose of ensuring that where in pursuance of subsection (1)(d) the

plaintiff alleges that the defendant consented to a decree being granted the

defendant has been given such information as will enable him to understand the

consequences to him of his consenting to a decree being granted and the steps

which he must take to indicate that he consents to the grant of a decree.

[Ch2906s16]16. Power to rescind decree nisi in certain cases

Where the court on granting a decree of divorce

held that the only fact mentioned in section 15(1) on which the plaintiff was

entitled to reply in support of his action was that mentioned in paragraph (d),

it may, on an application made by the defendant at any time before the rule is

made absolute, rescind the rule if it is satisfied that the plaintiff misled

the defendant (whether intentionally or unintentionally) about any matter which

the defendant took into account in deciding to consent to the grant of a

decree.

[Ch2906s17]17. Financial protection for defendant in certain cases

(1) The following provisions of this section shall

have effect where-

(a) the

defendant to an action for divorce in which the plaintiff alleged any such fact

as is mentioned in section 15(1)(c) or (d) has applied to the

court under this section for it to consider for the purposes of subsection (2)

the financial position of the defendant after the divorce; and

(b) a rule

nisi of divorce has been granted on the action and the court has held that

the only fact mentioned in the said section 15(1) on which the plaintiff was

entitled to rely in support of his petition was that mentioned in the said

paragraph (d).

(2) The court hearing an application by the

defendant under this section shall consider all the circumstances, including

the age, health, conduct, earning capacity, financial resources and financial

obligations of each of the parties, and the financial position of the defendant

as, having regard to the divorce, it is likely to be after the death of the

plaintiff should the plaintiff die first; and notwithstanding anything in the

foregoing provisions of this Act but subject to subsection (3), the court shall

not make absolute the rule of divorce unless it is satisfied-

(a) that

the plaintiff should not be required to make any financial provision for the

defendant, or

(b) that

the financial provision made by the plaintiff for the defendant is reasonable

and fair or the best that can be made in the circumstances.

(3) The court may if it thinks fit proceed without

observing the requirements of subsection (2) if-

(a) it appears

that there are circumstances making it desirable that the rule should be made

absolute without delay; and

(b) the

court has obtained a satisfactory undertaking from the plaintiff that he will

make such financial provision for the respondent as the court may approve.

[Ch2906s18]18. Rules may enable certain agreements or arrangements to be

referred to the court

Provision may be made by rules of court for

enabling the parties to a marriage or either of them, on application made

either before or after the presentation of an action for divorce, to refer to

the court any agreement or arrangement made or proposed to be made between

them, being an agreement or arrangement which relates to, arises out of, or is

connected with, the proceedings for divorce which are contemplated or, as the

case may be, have begun, and for enabling the court to express an opinion,

should it think it desirable to do so, as to the reasonableness of the

agreement or arrangement and to give such directions, if any, in the matter as

it thinks fit.

[Ch2906s19]19. Alleged adulterer as a party

(1) In an action for divorce brought by the

husband in which adultery is alleged or on the counteraction of a husband suing

for divorce and alleging adultery, the husband shall make the alleged adulterer

a co-defendant unless excused by the court if it thinks fit from doing so.

(2) In an action for divorce brought by the wife

in which adultery is alleged or on the counteraction of a wife suing for

divorce and alleging adultery, the wife shall make the alleged adulteress a

co-defendant unless excused by the court if it thinks fit from doing so.

(3) Where an alleged adulterer or adulteress is

made a co-defendant on such an action as is mentioned in subsection (1) or (2),

the court may, on the close of the evidence on the part of the plaintiff,

direct that the co-defendant be dismissed from the suit if the court is of

opinion that there is not sufficient evidence against him or her.

[Ch2906s20]20. Power to allow intervention on terms

In every case in which any person is charged with

adultery with any party to the action, or in which the court may consider in

the interests of any party not already a party to the action, that that person

should be made a party to the action, the court may, if it thinks fit, allow

that person to intervene upon such terms, if any, as the court thinks just.

[Ch2906s21]21. Restriction on actions within two years of marriage

(1) Subject to subsection (2), no action for

divorce shall be brought before the court before the expiration of the period

of two years from the date of the marriage (hereinafter in this section

referred to as "the specified period").

(2) The court may, on an application made to it,

allow the bringing of an action for divorce within the specified period on the

ground that the case is one of exceptional hardship suffered by the plaintiff

or of exceptional depravity on the part of the respondent; but in determining

the application the court shall have regard to the interests of any relevant

child and to the question whether there is reasonable probability of a

reconciliation between the parties during the specified period.

(3) Nothing in this section shall be deemed to

prohibit the bringing of an action based on matters which occurred before the

expiration of the specified period.

[Ch2906s22]22. Action for nullity and grounds thereof

(1) A husband or wife may bring an action before

the High Court that his or her marriage be declared null and void on any of the

grounds mentioned in subsections (2) and (3).

(2) A marriage shall be void on any of the

following grounds–

(a) that

the parties to the marriage are within the prohibited degrees of consanguinity

or affinity as provided in section 18 of the Cap. 29:01 Marriage Act;

(b) that

the former husband or wife of either party to the marriage was living at the

time of the marriage and the marriage with such former husband or wife was then

in force;

(c) that

the marriage is invalid under the laws of Botswana.

(3) A marriage shall, subject to subsection (4),

be voidable on any of the following grounds-

(a) that

the marriage has not been consummated owing to the wilful refusal of the

defendant to consummate it;

(b) that at

the time of the marriage either party to the marriage-

(i) was

of unsound mind;

(ii) was

a mentally disordered or defective person within the meaning of the Cap. 63:02 Mental Disorders Act, of such a kind or to

such an extent as to be unfit for marriage and the procreation of children; or

(iii) was

subject to recurrent attacks of insanity or epilepsy;

(c) that

the defendant was at the time of the marriage suffering from veneral disease in

a communicable form;

(d) that the

defendant was at the time of the marriage pregnant by some person other than

the plaintiff;

(e) that at

the time of the marriage either party to the marriage was impotent or incapable

of consummating the marriage; or

(f) that

the consent of either party to the marriage was obtained by force or fraud.

(4) The High Court shall not grant a declaration

of nullity in a case falling within paragraph (b), (c) or (d)

of subsection (3) unless it is satisfied that-

(a) the

plaintiff was at the time of the marriage ignorant of the facts alleged;

(b) proceedings

were instituted within a year from the date of the marriage; and

(c) marital

intercourse with the consent of the plaintiff has not taken place since the

plaintiff discovered the existence of the grounds for a decree.

(5) If the High Court is satisfied that the case

for the plaintiff has been proved, the High Court may grant a decree of

nullity.

(6) Where a declaration of nullity is granted in

respect of a voidable marriage, any child who would have been the legitimate

child of the parties to the marriage if at the date of the declaration it had

been dissolved instead of being annulled shall be deemed to be their legitimate

child unless such declaration be made on the grounds specified in subsection 3(d).

(7) Nothing in this section shall be construed as

validating any marriage which is by law void but with respect to which a

declaration of nullity has not been granted.

[Ch2906s23]23. Abolition of the action for restitution of conjugal rights

(1) After the date of commencement of this Act no

action shall be brought in any court for the restitution of conjugal rights.

(2) Where, before the date of commencement of this

Act, an action for restitution of conjugal rights has been commenced in any

court such action shall, notwithstanding subsection (1), be heard and

determined as if this Act had not been in force.

(3) Where an action for divorce or judicial

separation has been commenced in any court before the commencement of this Act,

and the ground for such action for divorce or judicial separation is failure to

comply with an order for restitution of conjugal rights, then, notwithstanding

the provisions of subsection (1), such action for divorce or judicial

separation shall be heard and determined as if this Act had not been in force.

[Ch2906s24]24. Presumption of death and dissolution of marriage

(1) Subject to the provisions of section 8 any

married person who alleges that reasonable grounds exist for supposing that the

other party to the marriage is dead may bring an action before the High Court

to have it presumed that the other party is dead and to have the marriaged

dissolved, and the High Court may, if satisfied that such reasonable grounds

exist, make an order of presumption of death and dissolution of the marriage.

(2) In any proceedings under this section the fact

that for a period of seven years or more the other party to the marriage has

been continually absent from the plaintiff and the plaintiff has no reason to

believe that the other party has been living within that time shall be evidence

that the other party is dead until the contrary is proved.

[Ch2906s25]25. Maintenance in cases of divorce and nullity of marriage

(1) 11 of 2008, s. 4(d). In any action

for divorce or nullity of marriage, the court may make such interim orders for

the payment of maintenance to a spouse as the court may think just and

equitable.

(2) On any decree for divorce or nullity of

marriage, the court may if it thinks fit, order–

(a) that a

spouse shall, to the satisfaction of the court, secure for the other spouse

such gross sum of money or annual sum of money for any term, not exceeding the

other spouse’s life, as, having regard to the other spouse’s fortune, if any,

to the ability of the first mentioned spouse and to the conduct of the parties,

the court may deem reasonable; and

(b) that a

spouse should pay to the other spouse, during their joint lives, such

periodical sum for the maintenance and support of the other spouse as the court

may think reasonable, and any such order may either be in addition to or

instead of an order made under subsection (1).

(3) This section shall have effect, in any case

where an action for divorce is brought by the wife on the grounds of her

husband's insanity, as if for the reference to the husband there were

substituted reference to the wife, and for reference to the wife there were

substituted reference to the husband.

(4) For the purposes of this section, in respect

to any decree for nullity the High Court shall have power to make an order

under subsections (1) and (2) as it would have had if the decree had been a

decree for divorce notwithstanding that the court has declared that no marriage

exists.

[Ch2906s26]26. Declarations of legitimacy, etc.

(1) Any person who is a Botswana citizen or whose

right to be deemed a Botswana citizen depends wholly or in part on his

legitimacy or on the validity of any marriage, may, if he is domiciled in

Botswana or claims any property situate in Botswana, apply to the High Court

for an order declaring that he is the legitimate child of his parents, or that the

marriage of his father and mother or of his grandfather or grandmother was a

valid marriage or that his own marriage was a valid marriage.

(2) Any person claiming that he or his parent or

any remoter ancestor became or has become a legitimated person may apply to the

High Court for an order declaring that he or his parent or remoter ancestor, as

the case may be, became or has become a legitimated person.

(3) For the purposes of subsection (2),

"legitimated person" means a person legitimated or recognized as

legitimated by or under any law.

[Ch2906s27]27. Alimony in cases of judicial separation 11 of 2008, s. 4(e).

(1) In any action for judicial separation, the

court may make such interim order for the payment of maintenance to a spouse as

the court thinks just.

(2) In or at any time after a decree for judicial

separation, the court may make such order for the payment of maintenance to a

spouse as the court thinks just.

[Ch2906s28]28. Custody and maintenance of children

(1) In any proceedings for divorce, nullity or

judicial separation, the court may from time to time, either before or at or

after the decree or declaration make such provision as appears just with

respect to the custody, maintenance and education of the children, the marriage

of whose parents is the subject of the proceedings.

(2) 11 of 2008, s. 4(f). On any decree of

divorce, declaration of nullity of marriage or on a decree of divorce where the

divorce is made on the grounds of a spouse’s insanity, the court shall have

power to order the other spouse to secure for the benefit of the children such

gross sum of money or annual sum of money as the court may deem necessary:

Provided that the term for which any

sum of money is secured for the benefit of a child shall not extend beyond the

date when the child attains 21 years of age.

[Ch2906s29]29. Power of subordinate matrimonial court to order service outside

the jurisdiction

(1) Where an action is to be brought before or is

being heard by a subordinate matrimonial court under this Act and such

subordinate matrimonial court on the application of any of the parties thereto

considers it necessary or expedient that service of any document be made

outside the jurisdiction, such subordinate matrimonial court shall make an

order remitting the documents for service to the High Court.

(2) Upon receipt of documents remitted by a

subordinate matrimonial court under the provisions of subsection (1) the High

Court shall, if it considers that such service should be effected, order such

service out of the jurisdiction and shall in all respects treat such documents

as if they had originated in the High Court.

(3) Any documents which the High Court orders to

be served outside the jurisdiction shall be returned to the High Court duly

served in such manner as the High Court may from time to time direct and the

High Court, on being satisfied that they have been duly and properly served

shall remit the documents to the subordinate matrimonial court from which they

originated.

(4) Upon receipt of documents from the High Court

duly served no objection or query shall be made either by the subordinate

matrimonial court or by any of the parties to the action as to the validity of

the manner in which they were so served but they shall be treated in all

respects as if they had been properly and validly served.

[Ch2906s30]30. Appeals

An appeal shall lie to the Court of Appeal-

(a) from

all final judgments of the High Court or of any subordinate matrimonial court

appointed under section 5; and

(b) by

leave of the High Court or Court of Appeal, from any interlocutory order, any

order made ex parte, or any order as to costs only.

[Ch2906s31]31. Power of Chief Justice to make rules

(1) The Chief Justice may, with the approval of

the Minister, make such rules as he may deem expedient to give effect to this

Act or for its better administration.

(2) Without derogating from the generality of

subsection (1) the rules may provide mutatis mutandis for all the

matters set out in section 28 of the Cap. 04:02 High Court Act.