Marriage, like any other partnership, comes with contractual obligations and when such is not fulfilled, it can be detrimental to both parties when the fairytale of ‘happily ever after’ is cut short.
Though at the beginning of their marriage in March 2017 they apparently consented to a marriage regime in community of property and signed some documents, the documents were never submitted to the Registrar of Deeds because an error was found by the District Commissioner’s office in Selebi-Phikwe where the couple wed.
The mistake was never rectified leaving their marriage regime now questionable whether it was in or out of community. The husband, who is said to have initiated the divorce proceedings, believes that their marriage was out of community of property while the wife believes it was in and that it would be unfair for her to leave the marriage empty-handed.
The matter was finalised at the High Court last year December where it was ruled that the marriage regime was in community of property and that the couple should have an equal share to the assets they accumulated during their short-lived marriage. “The justice of this matter demands that I order that the parties’ assets and liabilities be equally divided between them as if they were married in community of property.
The parties (must) prepare an inventory of their assets and liabilities and share them equally,” reads the High Court judgement. However, the husband, not satisfied with the outcome of the High Court judgement, took the matter to the Court of Appeal as he wants the marriage to be declared out of community of property since the forms were not completed and have not been registered at the Deeds Registry.
According to the husband, he knew about the uncompleted forms sometime in May 2017 through a telephone call from the District Commissioner’s office. He said at the time he had already changed his mind about the regime of the marriage and that he later went ahead to seek leave to apply to institute divorce proceedings before the expiry of two years.
He argues that the marriage was out of community because the form that was to be registered at the deeds office was never registered therefore it remains invalid. “There is no doubt that the instrument, being the form that was supposed to be signed was not duly signed due to an error that occurred. There is no registration that could have occurred without the instrument being duly signed.
Therefore, we were married out of community of property.
The High Court was wrong in its interpretation of the law,” he said. Meanwhile on the other hand, the wife, who says the husband wants to benefit from his own dishonesty after he was informed about the error and did not tell her, wants the marriage regime to be declared in community of property. She argued that it would be unfair for her to leave the marriage empty-handed because she only learnt about the error when she was served with the application to file for divorce proceedings before the expiry of two years. “He admitted under cross examination that he knew about the error in the form but never told me because he said at the time he had changed his mind about the regime. For me to have rectified the error it would have needed his cooperation which was going to be difficult since he changed his mind,” she argued. The panel of Justices Leatile Dambe, Barnabas Nyamadzabo and Chief Justice Tebogo Tau is expected to give its ruling on the matter on February 4, 2022. Ndadi Law firm represents the husband while Legal Aid Botswana represents the wife.