This is what Charles Maphane and Atang Maphane find themselves at odds with following an error found in their marriage signature which was never rectified until the divorce proceedings. According to their legal documents, the couple who are fighting, want the courts to determine whether their matrimonial regime was in community of property or not.
Although at the start of their marriage in March 2017 they apparently consented to a community of property marriage regime and signed certain documents, the documents were never submitted to the Registrar of Deeds as an error was found by the Selebi-Phikwe District Commissioner’s Office. where the couple got married.
The error was never rectified, leaving their marital regime now questionable, whether in or out of the community. The husband, who is said to have initiated the divorce proceedings, believes that their marriage was out of community of property while the wife believes that there was and that it would be unfair for her to leave the marriage empty-handed.
The case was finalized in the High Court last December, where it was ruled that the regime of the marriage was in community of property and that the couple should have an equal share of the assets accumulated during their short-lived marriage. “The justice of this case demands that I order that the assets and liabilities of the parties be equally divided between them as if they were married in community of property.
The parties (shall) prepare an inventory of their assets and liabilities and share them equally,” the High Court judgment read. However, the husband, dissatisfied with the outcome of the High Court judgment, took the case to the Court of Appeal as he wants the marriage to be declared out of community of property as the forms have not been completed and have not been registered in the Registry of Deeds.
According to the husband, he became aware of the uncompleted forms in May 2017 through a phone call from the district commissioner’s office. He said that at the time he had already changed his mind about the marriage regime and then asked for permission to file for divorce before the expiry of a two-year period.
He argues that the marriage was out of community because the form that was to be registered at the deeds office was never registered and therefore remains invalid. “There is no doubt that the instrument, being the form which was to be signed, was not duly signed due to an error which occurred. There is no inscription which could have take place without the deed being duly signed.
So we got married in community of property.
The High Court was wrong in its interpretation of the law,” he said. Meanwhile, on the other hand, the wife, who says that the husband wants to take advantage of his own dishonesty after being informed of the error and not telling him, wants the marriage regime to be declared in community of property . She argued that it would be unfair for her to leave the marriage empty-handed as she only learned of the mistake when she was notified of the request to initiate divorce proceedings before the expiry of a period of two years. “He admitted on cross-examination that he knew about the error in the form but never told me because he said at the time that he had changed his mind about the regime. For me to rectify the error, it would have required his cooperation, which was going to be difficult since he had changed his mind, “she argued. The panel of judges Leatile Dambe, Barnabas Nyamadzabo and Chief Justice Tebogo Tau is expected to rule on the matter on February 4, 2022. Ndadi Law Firm represents the husband while Legal Aid Botswana represents the wife.