oa Comparative and International Law Journal of Southern Africa - The recognition of foreign divorces in Botswana
The recognition of foreign divorces is a very important aspect of private international law. Divorce changes a person's status. After divorce that person may wish to remarry. He or she may also be anxious to settle issues of custody of the children of the marriage and matrimonial property. Failure to recognise the foreign divorce causes injustice and hardship, and destroys the uniformity and certainty that private international law is intended to achieve. The Mthethwa case is a very good illustration of the unfortunate circumstances that could flow from non-recognition. The state of the law in Botswana in this regard is unsatisfactory and uncertain. As Jaffey correctly points out, the rules governing the recognition of foreign divorces should strike the right balance between being too restrictive, thus unnecessarily creating limping marriages, and being too generous, thus sanctioning bogus divorces. In the present writers' opinion, the English rules to a great extent achieve this objective. The best way forward for Botswana is for Parliament to enact legislation clearly settng out the rules governing the recognition of foreign divorces in Botswana.
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