In Or Out Of Community?

| Monday March 22, 2010 00:00

When people enter into marriage, they are given the option of marrying in community of property or out of community of proprty.In community of property means that the couple jointly owns their property, including things that were accumulated before wedlock.  The property is split equally between the couple in the event of a divorce.

On the other hand, out of community of property means that the couple does not jointly own their property. 

But which of the two regimes is the better model?

A divorced Gaborone man, who prefers anonymity, believes that it all depends on the circumstances of the couple. He says if you had accumulated property and had children out of wedlock, out of community of property is the way. 'But if you don't have much property, then you can enter into community of property marriage,' he says.

He chose community of property because he had not accumulated much property when he got married. A marriage counsellor, Botho Ntswaneng, says she informs her clients about the options, including the advantage and disadvantages. But Ntswaneng makes it clear that she does not tell her clients which regime to take.

Ntswaneng says out of community could apply to people who were previously married. It could also be suitable when there are children from a previous marriage or relationship. But she is quick to point out that if you are married under this regime, it does not mean that you will be bringing your own chair and the partner bringing his/hers.

She also speaks about the ante-nuptial clause that many people are not aware of. She says this clause means that the property that you inherited is not part of the in community of property regime.

Ntswaneng says even if you were married out of community of property, during divorce hearings, the court looks at the property you amassed together. 'There are certain things that the court might order you to share,' she says.

Kanye Assistant District Officer, Kabelo Thekiso, feels that marrying in community of property makes the couple bond. He says most people, whose marriages he has solemnised are married in community of property. In his view, marrying out of community of property is not common.

 'It is very rare. Since the beginning of year, only one couple married out of community of property,' he reveals. Thekiso says one of the partners becomes suspicious if the other wants their marriage to be out of community.

Francistown District Commissioner, Richard Oaitse, says marrying in community of property means that you would not only share the property jointly but even the responsibility. He says if there are children from a previous relationship, the new partner is also responsbile for their upkeep. He says you also share the profits of any other business that the other partner might be owning. 'If you are married in community of property, you jointly own everything together,' he says. He says one of the advantages of this regime is that you can pool your resources, for instance, to raise security for a loan.

The Francistown District Commissioner says if you jointly own property, you also become united. The only challenge is if one partner is irresponsible. He says the advantage of out of community of property is that you can generate your property as you wish and you do not need the consent of the other partner to enter into any transaction. But he feels that the out of community of property concept might destabilise a marriage. Oaitse says there is no way you can change if you have entered into one of the regimes. He assumes that maybe future legislation would make this possible.

As for a customary marriage, he says, it does not allow for an out of community arrangement. Marrying out of community of property is a big no, no for Francistown lawyer, Phazha Kgalemang. He says many people are not aware that when you get married, you become a single entity.

 

;We must become one and marry in community of property,' he says. He says when people enter into wedlock, they must not anticipate a divorce. Kgalemang says it is not important even if the other partner did not bring anything when they tied the knot. To him what is important is the sanctity of marriage.

'As Africans, we live as a community,' he says. Marrying in community of property is the best option for him. Neither party can chastise the other that 'you only came with a bag'. He says when you are married out of community of property, it could make the life of the other spouse unbearable. He says the partners would always be arguing that 'this is mine'. 

'Sometimes you fight over the television set; it divides the house itself,' says Kgalemang, who has dealt with many marital cases.