The Married Persons Property Act CAP. 29:03 of 1 January 1971 has been repealed and substituted with the New Act, “The Married Persons Property Act, 2014” which commenced operation on the 1 August 2014.

While it was not possible under the old act that once a couple has chosen the marital regime i.e. in or out of community of property, they could not change such property regime, it is now possible under the new act to approach the High Court for leave to change the property regime. This would apply even to those marriages which were solemnised before the commencement of the new act, that is to say even those couples who were married under the old act of January 1971, can now approach the High Court and change their property regime to either opt to be in or out of community of property. A choice of property regime is an announcement to the whole world and hence the instruments the parties to a marriage sign have to be registered at the Deeds Registry for everyone to have access and check when they deal or intend to deal with a couple. The first and foremost purpose of registration is to protect creditors amongst others.

In applying to the High Court for leave to change the property regime under the new act, one has to satisfy the Court amongst others that, the proposed change is not in bad faith and that adequate and sufficient notice of the proposed change has been given to all the creditors of each of the spouses. As part of notification to creditors and or to any other person who may wish to oppose the proposed change, the person applying must publish the proposed change in three consecutive issues of the Government Gazette and a newspaper of national circulation. Once the Court has ordered that the former property regime of the spouses shall no longer apply, the Court shall authorise the spouses to enter into a Notarial Deed by which their future property regime is to be regulated.

The change of property regime can only be done once during the subsistence of a marriage. Most of the provisions of the new act are a repetition of the old act save that the time periods within which instruments can be registered at the Deeds Registry have been increased.

Instruments which after the 1 January 1971 were executed in accordance with the provisions of the old act but not registered with Deeds Registry shall remain valid but should be registered under the new act within eighteen months after the commencement of the Act, failure of which the instruments not so registered shall become null and void.

The advice given to clients therefore is that all couples who got married after the 1 January 1971 and who executed the instruments to say either that they were in or out of community of property should ascertain with the Deeds Registry if their instruments were registered and if not, to cause such instruments to be registered within 18 months from the 1 August 2014, otherwise their instruments regulating their marital regime shall become null and void.

For further information, please obtain a copy of the Act from the Government Printer to read and familiarise yourself with other provisions of the Act.

Written by Thabiso T Tafila, Partner, Head of Employment and General Litigation, Minchin & Kelly, Botswana (a member of DLA Piper Africa)