The Matrimonial Causes Act, 1 of 1973 (Cap. 29:07 of the Laws of Botswana) was passed by the National Assembly on 27 October, 1972. It was assented to by the then President of Botswana, the late Sir Seretse Khama, on 2 February, 1973, and entered into force a week later on 9 February, 1973. The Act applies to civil marriages only, i.e. marriages concluded in terms of the Marriage Act (Cap. 29:01); customary law marriages have been excluded from its operation. As its short title indicates, the Act deals with matrimonial causes, that is to say divorce, judicial separation and the annulment of marriages and matters incidental thereto such as the property rights of spouses, custody, guardianship, maintenance and the jurisdiction of the courts.
During its first 10 years of existence the Act has been the subject-matter of many a decision of the High Court and provisions of it have been considered also by the Court of Appeal. Most of these decisions deal with divorce. In academic circles, too, the Act received attention, witness the review by Chris Himsworth in the Journal of African Law . This review was written immediately after the Act came into force. An updated account is therefore appropriate. As I intend to approach the Act from a broader historical and jurisprudential angle, I will deal with it afresh rather than use Himsworth's penetrating but positivistic analysis as a frame of reference.
Type Articles Information Journal of African Law , Volume 26 , Issue 2 , Autumn 1982 , pp. 163 - 176 Copyright © School of Oriental and African Studies 1982Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 See s. 3; s. 4 further limits relief under the Act to monogamous marriages.
2 Himsworth , C. M. G. , “Effects of matrimonial causes legislation in Botswana”, [1974] J. A. L., 173 – 179 Google Scholar .
3 Hansard , (National Assembly), Vol. 42 ( 1972 ) 83 Google Scholar .
4 The general law of Botswana constitutes a “mixed legal system”, i.e. partly Roman-Dutch, partly English. See Allott , A. N. (ed.), Judicial and Legal Systems in Africa , 2nd. ed. , 1970 , 261 – 273 (Simon Roberts)Google Scholar ; Aguda , A. , “Legal development in Botswana from 1885 to 1966”, 5 Botswana Notes and Records 52 – 63 Google Scholar ; Sanders , A. J. G. M. , “The characteristic features of the Southern African legal system”, ( 1981 ) 14 C.I.L.J.S.A. (November issue)Google Scholar .
5 “Comparative law and legal change”, ( 1978 ) 37 C.L.J. 313–336, at 331 Google Scholar .
6 Hansard , (National Assembly), Vol. 41 , part I ( 1972 ) 15 Google Scholar .
7 Matrimonial Causes Bill, 22 of 1972, Government Gazette Vol. X ( 1972 ) supplement B159Google Scholar .
8 Hansard , (National Assembly), Vol. 41 , part I ( 1972 ) 15 Google Scholar .
9 Report of the Select Committee on the Matrimonial Causes Bill 1972: The National Assembly, P.O. Box 240, Gaborone.
10 Hansard (National Assembly), Vol. 42 (1972) 83, Vol. 41 , part I ( 1972 ) 20 .Google Scholar
11 Hansard (National Assembly), Vol. 42 ( 1972 ) 91 Google Scholar ..