There has been a growing trend of cohabitation among Batswana over the years, with many cohabitants unaware of, or ignorant of, the risks that come with cohabiting, whether legal or otherwise. Many Batswana choose to enter these living arrangements without being legally married due to economic reasons or a desire to get to know their partners prior to fully committing to marriage; however, such arrangements tend to come with legal limitations that disadvantage both parties.
Lack of Legal Recognition
Botswana does not recognize cohabitation as a legal status, and as a result, cohabiting couples are left in a vulnerable position because they do not receive the same automatic protections that come with marriage. Marriage is legally recognized and grants spouses rights relating to property, inheritance, and maintenance. Cohabitation, however, does not provide for the same rights.
Property Disputes After Separation
When a cohabiting relationship ends, there is often a blurred line regarding how property acquired during the relationship should be divided, especially where there is no clear identification of who acquired the property, or where both parties contributed financially. The situation becomes even more complex where one party contributed in less quantifiable ways, such as domestic labour.
Vulnerability After the Death of a Partner
The dangers of cohabitation become particularly evident after the death of a partner. Unlike in a marriage, a surviving cohabiting partner has no automatic right to inherit from the deceased’s estate. Where the deceased partner dies intestate, the surviving partner may be completely excluded, regardless of the length of the relationship or the fact that the couple shared a home. In some unfortunate instances, the surviving partner may even be evicted from the deceased’s family home, illustrating the harsh reality created by the absence of laws regulating cohabitation.
Absence of Maintenance and Financial Support
Issues of maintenance and financial support further expose the vulnerability of cohabiting partners when the relationship ends. In marriage, the law recognizes that spouses may become financially dependent on one another, and a spouse may therefore claim maintenance following divorce. Cohabiting partners are not afforded this protection and are often left to fend for themselves once the relationship ends, frequently returning to the same financial position they were in prior to cohabitation.
Economic Independence and Legal Uncertainty
This reality is particularly harsh for partners who relied on the other’s financial support during the relationship. A partner may have resigned from employment, reduced their income, or dedicated themselves to domestic work under the expectation of ongoing financial security. When the relationship ends, they may be left with limited support and few legal remedies. Even where the relationship closely resembled a marriage in practice, the law does not recognize it as such, resulting in significant legal and financial uncertainty.
Gendered Risks and Property Ownership
Legal writers have observed that the prevailing societal assumption in Botswana is that property acquired within a shared household primarily belongs to the man. The absence of a valid marriage therefore places women and children at heightened risk of losing property. Regardless of the duration of cohabitation, a woman may be unable to assert any legal claim to such property. Marriage thus becomes a lawful mechanism through which a woman may access property accumulated by the father of her children, for the benefit of those children. While these observations carry their own nuances, they underscore the importance of securing legal protection through marriage.
A Fragile Alternative to Marriage
While cohabitation offers freedom and flexibility, it also carries significant disadvantages. Without the protective legal framework that marriage provides, cohabiting partners remain vulnerable to property disputes, financial insecurity, and estate succession conflicts with surviving relatives following the death of a partner. It is therefore important that Batswana are made aware of these potential consequences in order to avoid unforeseen legal setbacks. Although cohabitation may resemble marriage in practice, it remains a fragile and legally unprotected arrangement between two unmarried individuals
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