Legal Pluralism and its effect on Marriages in Botswana

Dual Marriage System in Botswana

• Marriages can be conducted under customary law, civil/common law, or both.
• Sections 13(1) and 13(2) allow for marriages under both common and customary law, raising questions about legal implications.

Consequences of Double Marriage

• Marrying someone under civil law while already married under customary law is prohibited.
• Subsequent marriages are nullified.
• Customary law marriages are potentially polygamous.
• Intestate succession is determined by the parties' intention, not solely the type of marriage.

Key Cases

• Rabantheng v Rabantheng and Samson v Samson: Statutory marriage doesn't automatically displace customary law in intestate succession.

Dissolution of Customary Law Marriages

• Mafokate v Mafokate: The High Court has unlimited jurisdiction to dissolve customary law marriages.
• Mphoyakgosi v Jakoba: Botswana courts must apply customary law where it is the proper law (Section 5 of the Common Law and Customary Law Act).

Customary Courts

• Customary marriages can be dissolved in Chief's Courts.
• Relations testify to the marriage's breakdown.
• The Court can divide property between parties.