Family in Botswana

Botswana has a dual legal system consisting of inherited Roman-Dutch law and customary law (Customary Law). Family matters may therefore fall under, or be practically relevant to, courts, government offices, traditional leaders such as a Kgosi and a local traditional forum (Kgotla). A Kgotla is a local traditional forum or court; its jurisdiction and legal effect depend on the case and the applicable law. The 2022 census recorded 2,359,609 inhabitants and 695,703 households. The average household size was 3.39 people, but differed considerably by district, for example between 2.86 in Chobe and 4.01 in the Southern District. Data on the marital status of household heads do not automatically describe the prevalence of particular family forms: 55 percent had never married, 25 percent were married and 86,366 lived with a partner. All births occurring in Botswana must be registered, regardless of the parents’ nationality. Registration by the 60th day is normally treated as a timely notification and is usually completed the same day; after that it is considered late registration and takes approximately 14 days. For a birth in a facility, the birth notification and a national identity card (Omang) or passport are required; Omang is Botswana’s national identity document. For a birth outside a facility, a confirmation from the Kgosi, the child’s under-five medical card, a sworn statement or information from the parents and two witnesses may additionally be required. The responsible offices are regional or district-wide offices of the civil registration department (Department of Civil and National Registration). A civil marriage requires notice of intention to marry and a 21-day publication period. The civil ceremony takes place at a District Administration office or before a pastor; both partners must generally be at least 18 years old. For younger persons, written consent from a parent or guardian is required. Omang or a passport and a confirmation from the Kgosi of marital status or origin are usually required. A civil marriage certificate, customary status and a religious marriage are not the same thing. The public service information on civil registration excludes customary marriages and Muslim, Hindu and other religious marriages from the registration requirement described there; the specific recognition and documentation should therefore be checked with the responsible office. The law on children (Children’s Act 2009) treats persons under 18 as children and focuses on protection from violence, abuse, neglect, exploitation and harmful practices. The Department of Child Welfare, social workers and a Magistrate Court may intervene where a child lives in an abusive, impoverished or unstable environment, a household is headed by a child, or parents need support because of illness, HIV or a disability. Foster parents are assessed by social workers; emotional, physical and financial suitability, as well as the absence of relevant convictions or reasonable grounds for suspicion, are considered. Foster care may be undertaken jointly by a married couple or by a person whom the court considers suitable and reliable. To adopt, the prospective parent must be at least 25 years old. Married couples apply jointly; widowed, unmarried, divorced and judicially separated persons may also qualify. The application is submitted to the Magistrate Court in the child’s place of residence and is supplemented by a social report and a household assessment; Omang, the child’s birth certificate, where applicable a marriage certificate and proof of income are often required. The duration varies. Public information on the fees is inconsistent: one justice website states that the procedure is free, while a government legal-information website states BWP 60; the fee should be confirmed with the Civil Registry before applying. A parent, guardian, person with custody or another person with legal care of the child may apply for maintenance at the Magistrate Court. If there is no Magistrate Court in the area, the District Commissioner may be responsible. Registration of the application typically requires a form, an oath before a Commissioner of Oaths and Omang; registration is free. For a child born outside marriage, paternity and, where necessary, a DNA test may need to be clarified. The court considers the means of both parents and the child’s needs. If lack of means is claimed, a social-work assessment may be carried out. A maintenance order can be adjusted when circumstances change; an appeal to the High Court may be filed within 30 days. In the event of arrears, the court may issue a payment notice with a 14-day deadline, involve the police and, in certain cases, order imprisonment for up to one year. Social support includes, among other things, programmes for orphans and vulnerable children, support for needy households, benefits for persons with disabilities and community-based home care (Community Home-Based Care). An application for support for needy persons is made through a social and community development officer (Social and Community Development Officer) or a Botswana Post and requires nationality and an assessment of need. Typical documents are Omang or a passport and, where applicable, birth certificates of dependent children. The published processing time is approximately one month. The 2022 census recorded destitute-persons programmes as a source of income for 13,998 households and orphan-care programmes for 4,078 households; these figures show the formal reach of the programmes but are not an estimate of total need. In cases of violence or immediate danger, any affected party may apply for a protection order. The usual requirements are an initiating affidavit, an application letter and a draft court order; in urgent cases, a certificate of urgency may be added. The Magistrate Court or Registry is responsible, and the procedure is free. The Botswana Police Service operates the toll-free number 0800 600 144 for gender-based violence; 999 is the police emergency number. A civil dispute may also be brought directly before a Kgosi at the Kgotla; Omang or a passport is required, and the procedure is free. Special jurisdictional rules apply to customary property division, including marital property: a customary marriage can generally be dealt with without an order of the High Court, while a non-customary marriage may be referred to the High Court. A list of the property helps with the assessment. The High Court has jurisdiction over divorce, judicial separation and nullity, regardless of whether the marriage was customary, religious or under Common Law. The basis is an irretrievable breakdown of the marriage; generally, the marriage must have lasted at least two years, although exceptions may apply because of particular hardship or serious misconduct. Matters concerning custody, child maintenance and marital property may be dealt with at the same time. As the upper guardian, the court protects the interests of minor children and assesses suitability and sufficient means in custody matters. Documents required include, among other things, a statement of claim or summons in four copies and the marriage certificate. A decree nisi becomes a decree absolute no earlier than six weeks later; where the case is contested, the total duration depends on the circumstances and the available hearing date. Every death in Botswana must be registered within 30 days, regardless of the deceased person’s nationality. A timely notification is normally processed the same day; a late notification is reviewed by a central Assessment Committee and takes approximately two to three weeks. For a death in a facility, the death notification and an identity document or passport are required. Outside a facility, a confirmation from the Kgosi or local authority, a declarant and two witnesses may be required. The probate authority (Master of the High Court) is responsible for the estate. The published service information refers to a death report within 14 days, the death certificate, a Death Notice, a provisional inventory of the estate and, where applicable, a marriage certificate, a marital-property form and a will. An estate may be administered under a will or under intestacy law; the executor identifies heirs and debts and prepares the estate inventory. The stated processing time is approximately six months. In addition to a fee of BWP 20, newspaper and Government Gazette costs may arise.