In Botswana, there are two types of marriages or two ways of getting married: customary marriage and marriage under the Act (or under the “common law”). Customary marriages are performed at a customary court (“kgotla”) and require the approval of the local chief. Marriages under the Act are officiated by civil authorities and require registration with the National Registration (Omang) office. Although some people still choose to have a customary marriage ceremony, most people marrying in Botswana will register a marriage under the Act (a “common law” marriage) to ensure that they receive the full legal benefits of marriage.
How To Register a Common Law Marriage
Those wishing to marry under common law must comply with all the formalities laid down by the Marriage Act.
Only marriage officers appointed by law can perform the ceremony of common law marriage. In general, marriages are performed by the office of the District Commissioner. However, other people can be licensed to conduct marriages. These include Administrative Officers and Ministers of Religion or persons who hold a responsible position in any religious denomination or community. Such persons must apply in writing to the District Commissioner to become marriage officers, after which their appointments must be published in the Government Gazette.
Affidavit of Marriagability
Individuals wishing to marry in Botswana must demonstrate that they have never been married before or their marriage has been dissolved either by death or by other lawful means. Individuals should be prepared to present divorce or death decrees, as necessary.
To demonstrate their availability to marry, American citizens marrying in Botswana can appear at the U.S. Embassy in Gaborone to swear an affidavit of marriagability before a consular official.
Notifying The Community
Three months before your prospective common law marriage, you must see your local District Commissioner or other administrative officer and give them notice of your intention to marry one another. Your names then will be displayed publicly outside the office of the District Commissioner for three successive Sundays. If you are Christians you may take this action through your church. There is an application fee of P40.00. This procedure is known as PUBLICATION OF BANNS.
Doing It The Quick Way
It is possible, if for some reason you cannot or do not wish to publish banns, to apply for a SPECIAL LICENSE at the office of the District Commissioner. If he/she is satisfied that there is no legal obstacle to your marriage, he/she may grant you a special license after you have paid P190.00 and you may be married without publishing banns. This will only be granted on proof that the marriage must be performed urgently. For more information contact the National Registration (Omang) offices at BBS Mall in Gaborone at telephone number (+267) 397-3252.
Divorces under Customary Law Marriage
If a couple has concluded a customary marriage ceremony, they could choose to divorce before a chief at a customary court. Relatives of both spouses help the chief by giving testimony about marital events and opinions on dividing marital property. Relatives play a big part in customary marriage divorces. The chief will grant the divorce after listening to both relatives’ witnesses.
Divorces under Common Law Marriage
Marriages completed under the Act (“common law” marriages) cannot come to an end unless the High Court or the Court of Appeal orders so, or one spouse dies.
The person claiming that the marriage has broken down must prove one of the following factors laid down by the law:
- That the other spouse has committed adultery (or had sexual relations with someone else) and that as a result, the spouse seeking divorce finds it intolerable to continue living with him or her.
- That the other spouse has behaved in such a way that the spouse seeking divorce cannot reasonably be expected to live with him or her.
- That the other spouse has without good reason abandoned the home for a continuous two years before the action for divorce was started.
- That both spouses have lived apart for a continuous period of two years before the action for divorce was started, and the other spouse agrees to the divorce.
Even after proving one or more of the above factors, the court must be satisfied that the marriage has indeed broken down beyond repair before it can grant an order or decree of divorce. The High Court may refuse to grant a divorce if not satisfied that the marriage has broken down beyond repair. At the moment, only the High Court and Court of Appeal can hear divorce actions.