CHAPTER 29:03

MARRIED PERSONS PROPERTY

ARRANGEMENT OF SECTIONS
SECTION

1. Short title
2. Interpretation
3. Community of property excluded
4. Exclusion by agreement of community of property from marriages entered into
prior to commencement of this Act
5. Deeds to specify allocation of property
6. Registration of instrument of notarial deed
7. Proprietary consequences of marriages of persons subject to any Botswana
customary law
8. Validation of certain instruments
9. Section 16 of Cap. 33:02 not to apply to instruments under this Act

First Schedule
Second Schedule

Act 69, 1970,

Act 39, 1971,
Act 17, 1975,
Act 37, 1980.
An Act to amend the law relating to the property of married persons and for
matters incidental thereto.
[Date of Commencement: 1st January, 1971]
1. Short title
This Act may be cited as the Married Persons Property Act.
2. Interpretation
In this Act, unless the context otherwise requires—
"matrimonial domicile" means the domicile of the husband at the time of
marriage;
"Registrar" means the Registrar of Deeds.
3. Community of property excluded
(1) Community of property and community of profit and loss and the marital
power or any liabilities or privileges resulting therefrom shall not attach to any marriage
solemnized between spouses whose matrimonial domicile is in Botswana which is
entered into on or after the commencement of this Act, unless such spouses have, by an
instrument in writing, signed by each of them prior to the solemnization of their marriage
and in the presence of two persons, one of whom shall be an administrative officer or
justice of the peace or a commissioner of oaths, who shall subscribe thereto as
witnesses, expressed their wish to be exempt from the provisions of this Act.
(2) Such instrument shall be as nearly as possible in the form set out in the First
Schedule and shall be registered in the Deeds Registry within 90 days after the
execution thereof and shall not be valid unless so registered:
Provided that if any instrument submitted for registration within the said period of
90 days has on the face of it any defect the Registrar shall return it to the person by
whom it was submitted setting out the defects and requiring the instrument to be
returned to him within such period of time, not being less than 60 days, as he may in his

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discretion allow, with such defects corrected; if the instrument is returned to the
Registrar within the time allowed by him with the defects corrected, then it shall be
registered by the Registrar and shall be valid notwithstanding that it was registered more
than 90 days after execution.
4. Exclusion by agreement of community of property from marriages entered
into prior to commencement of this Act
(1) Community of property and community of profit and loss and the marital
power or any liabilities or privileges resulting therefrom shall not attach to any marriage
solemnized between spouses whose matrimonial domicile is in Botswana entered into
prior to the commencement of this Act, if at any time the parties thereto shall by notarial
deed express their wish that this Act shall so apply.
(2) Notice that such deed has been executed shall be published in the Gazette
and the deed shall, on proof of such publication, be registered in the Deeds Registry on
payment of a fee of P2 within 28 days after the execution and shall not be valid unless
so registered:
Provided that nothing contained in this section shall derogate from or affect the
rights of creditors existing between the date of any such marriage and the registration of
any such instrument.
5. Deeds to specify allocation of property
(1) Every notarial deed executed in accordance with section 4 shall specify in
detail the allocation to each spouse executing such deed of his or her half share of the
property held in community at the date of execution thereof, or such other division
thereof as they may have agreed upon.
(2) Where any notarial deed has allocated immovable property to a spouse in
whose name such property is not registered at the time of such allocation, a deed
transferring such property to such spouse shall be executed and registered in the Deeds
Registry within six months of the registration of the notarial deed in accordance with
section 4.
6. Registration of instrument or notarial deed
Where an instrument executed in accordance with section 3 or a notarial deed
executed in accordance with section 4 is presented for registration in the Deeds
Registry, a signed original of such instrument or notarial deed, as the case may be, for
filing in the Registry as the Registry duplicate together with two further originals or
glosses or copies certified by a notary public shall be lodged.
7. Proprietary consequences of marriages of persons subject to customary law
(1) Subject to the provisions of this section and of the Dissolution of Marriages of
persons subject to any Botswana Customary Law (Disposal of Property) Act,
notwithstanding that the matrimonial domicile of a marriage between persons subject to
a Botswana customary law (not being a marriage under any customary law) in Botswana
such marriage shall not affect the property of the spouses which shall be held, may be
disposed of, and, unless disposed of by will, shall devolve according to customary law.
(2) Notwithstanding subsection (1), the spouses in a marriage between persons
subject to customary law may, where the matrimonial domicile is in Botswana, prior to
the solemnization of the marriage or where such marriage was solemnized prior to the
commencement of this Act, by instrument in writing, signed by each of them and in the
presence of two persons, one of whom shall be an administrative officer or justice of the
peace or a commissioner of oaths, who shall subscribe thereto as witnesses, express
their intention to be exempt from the provisions of subsection (1).
(3) Such instrument shall be as nearly as possible in one of the forms set out in
the Second Schedule and shall specify whether the spouses wish to avail themselves of
the provisions of this Act by excluding community of property and community of profit

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and loss and the marital power or otherwise and if they do so avail themselves of such
provisions then community of property and of profit and loss and the marital power shall
be so excluded in accordance with the provisions of section 3(1); if they do not so avail
themselves, the said instrument shall have the effect of an instrument executed under
section 3.
(4) An instrument executed in accordance with this section shall be registered in
the Deeds Registry within 90 days after the execution thereof and shall not be valid
unless so registered:
Provided that if any instrument submitted for registration within the said period of
90 days has on the face of it any defect the Registrar shall return it to the person by
whom it was submitted setting out the defects and requiring the instrument to be
returned to him within such period of time, not being less than 60 days, as he may in his
discretion allow with such defects corrected; if the instrument is returned to the Registrar
within the time allowed by him with the defects corrected, then it shall be registered by
the Registrar and shall be valid notwithstanding that it was not registered within 90 days
of execution.
8. Validation of certain instruments
(1) Any instrument which, prior to 5th November, 1971, has been registered by
the Registrar after the expiry of 28 days from the execution thereof shall, subject to the
provisions of subsection (2), be valid notwithstanding that it was registered more than 28
days after execution.
(2) Any instrument which, prior to 5th November, 1971, has been registered by
the Registrar but which has on the face of it any defect shall be returned by the Registrar
to the person by whom it was submitted setting out the defects and requiring the
instrument to be returned to him within such period, not being less than 60 days, as he
may in his discretion allow, with such defects corrected.
(3) If the instrument is returned to the Registrar within the time allowed by him
with the defects corrected, then it shall be re-registered and shall be valid
notwithstanding that it was re-registered more than 28 days after execution.
9. Section 16 of Cap. 33:02 not to apply to instruments under this Act
Section 16 of the Deeds Registry Act shall not apply in relation to any instrument
attested under this Act.
FIRST SCHEDULE
(Section 3)
We, the undersigned, A.B. of ......................................... and C.D. of .................................. do
hereby solemnly express our wish to be that our contemplated marriage with each other shall
be in community of property and exempt from the provisions of the Married Persons Property
Act.
(signed) A.B. ..........................................................
C.D. .........................................................
Witnesses: 1.
2.
N.B. One witness must be an administrative officer, a justice of the peace or a
commissioner of oaths.

SECOND SCHEDULE
(Section 7)
Form A
We, the undersigned, A.B. of ...................................................................... and C.D. of
......................................................................... do hereby solemnly express our wish to be:

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 (a) that the proprietary consequences of our contemplated marriage should be regulated
by the common law and not the customary law and in consequence we wish to be
exempt from the provisions of section 7(1) of the Married Persons Property Act; and
(b) to avail ourselves of the provisions of the said Act by excluding community of property
and community of profit and loss and the marital power.
(signed) A.B ...........................................................
C.D ............................................................
Witnesses: 1.
2.
N.B. One witness must be an administrative officer, a
justice of the peace or a commissioner of oaths.

Form B
We, the undersigned, A.B. of ...................................................................... and C.D. of
......................................................................... do hereby solemnly express our wish to be:
(a) that the proprietary consequences of our contemplated marriage should be regulated
by the common law and not the customary law and in consequence we wish to be
exempt from the provisions of section 7(1) of the Married Persons Property Act; and
(b) that we do not desire to avail ourselves of the provisions of the said Act as aforesaid.
(signed) A.B ...........................................................
C.D ............................................................
Witnesses: 1.
2.
N.B. One witness must be an administrative officer, a
justice of the peace or a commissioner of oaths.

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