MATRIMONIAL CAUSES: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

Matrimonial Causes Rules

MATRIMONIAL CAUSES RULES

(under section 31)

(16th March, 1973)

ARRANGEMENT OF RULES

   RULE

   1.   Citation

   2.   Interpretation

   3.   Application of other rules

   4.   Commencement of proceedings

   5.   Cause to be begun by writ of summons

   6.   Discontinuance of cause before service of writ

   7.   Amendment of declaration

   8.   Service of amended declaration

   9.   Filing of plea by the defendant

   10.   Filing of reply and subsequent pleading

   11.   Right to be heard on ancillary questions

   12.   Decrees and orders

   13.   Application for rescission of decree

   14.   Copies of decrees and orders

   15.   Service of order

   16.   Rescission of decree nisi by consent

   17.   Decree absolute

   18.   Certificate of decree absolute

   19.   Rescission of decree of judicial separation

      Schedule - Information to be given in a Declaration

S.I. 22, 1973,
S.I. 33, 1973
S.I. 16, 2002.

1.   Citation

   These Rules may be cited as the Matrimonial Causes Rules.

2.   Interpretation

   In these Rules unless the context otherwise requires-

   "court" means the High Court of Botswana;

   "Registrar" means the Registrar of the High Court of Botswana.

3.   Application of other rules

   Subject to the provisions of these Rules and of any enactment, the Rules of the High Court shall apply with the necessary modifications to the practice and procedure in matrimonial proceedings in the High Court.

4.   Commencement of proceedings

   (1) An application under section 21 of the Act for leave to bring an action for divorce before the expiration of two years from the date of the marriage shall be made by notice of motion.

   (2) To the application must be attached-

   (a)   an affidavit by the applicant exhibiting a copy of the proposed declaration and stating-

      (i)   the grounds of the application;

      (ii)   particulars of the hardship or depravity alleged;

      (iii)   whether there has been any previous application under the said section 21;

      (iv)   whether any, and if so what, attempts at reconciliation have been made;

      (v)   particulars of any circumstances which may assist the court in determining whether there is a reasonable probability of reconciliation between the parties;

   (b)   a copy of the application and of the supporting affidavit for service on the defendant; and

   (c)   unless otherwise directed on an application made ex parte, a certificate of the marriage.

   (3) Unless otherwise directed the application shall be heard in chambers.

5.   Cause to be begun by writ of summons

   (1) Every cause other than an application under section 21 of the Act shall be begun by a writ of summons to which shall be attached a declaration.

   (2) Unless otherwise directed, every declaration shall contain the information set out in the Schedule, as near as may be in the order there set out, and any further or other information required by such of the following paragraphs of this rule as may be applicable.

   (3) If the action has been brought for a decree of nullity under section 22(3)(b), (c) or (d) of the Act, the declaration shall state whether the plaintiff was at the time of the marriage ignorant of the facts alleged and whether marital intercourse with the consent of the plaintiff has taken place since the plaintiff discovered the existence of the grounds for a decree.

   (4) If the action has been brought for a decree on the ground contained in section 15(1)(d) of the Act, then the plaintiff shall attach to his declaration a document of consent as set out in Form 1 in the Schedule.

   (5) The plaintiff's declaration shall also contain sufficient information as will enable the defendant to understand the consequences of his signing the document, and that the defendant is not obliged to sign it, but that if he signs it a decree of divorce may be pronounced in favour of the plaintiff.

   (6) If the action has been brought for a decree of presumption of death and dissolution of marriage, the declaration shall state-

   (a)   the last place at which the parties to the marriage cohabited;

   (b)   the circumstances under which the parties ceased to cohabit;

   (c)   the date when and the place where the respondent was last seen or heard of; and

   (d)   the steps which have been taken to trace the respondent.

6.   Discontinuance of cause before service of writ

   Before the writ of summons is served on any person, the plaintiff may file a notice of discontinuance and the cause shall thereupon stand dismissed.

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