household necessities or to function as a public trader.<sup>17</sup> The husband’s marital power extended to beyond administration of the marital property. The wife needed her husband’s permission to work outside the marital home, enter into contracts or open a bank account and the husband could choose where to live.<sup>18</sup> Where the spouses opted for a separate property regime, spouses owned and controlled their respective property separately. Although customary and civil marriages were regulated separately, and came from different continents and contexts, there was a striking similarity in that wives in both marriages were subject to the husband’s marital power over joint marital property and in their everyday lives.

The customary law relating to marriage remained uncodified and did not change postindependence. Women under customary law were considered to be “perpetual minors” and were subject to the guardianship of their husbands upon marriage. The husband was considered the head of the household and had final decision-making power on family matters, as well as personal matters. This meant that a wife in a customary marriage had no legal capacity to engage in legal proceedings without her husband’s assistance and she forfeited the capacity to acquire a domicile of her own choice.<sup>19</sup> As the proprietary consequences of a customary marriage were never codified, there is some variance in its interpretation. There is agreement that underlying customary norms was the promotion and maintenance of men’s control over productive resources, particularly land, and that women were overlooked when it came to inheritance.<sup>20</sup> The premise was that men were under an obligation to maintain female family members. Yet, according to writers such as Quansah, the limitation on female ownership under Tswana customary law was not absolute, and any property a woman possessed at the time of her marriage, or acquired during the marriage, constituted her own personal property over which she had full and exclusive rights.<sup>21</sup> She characterizes the marital regime in a customary law marriage as similar to a separate property regime.

However, other authoritative sources, most notably the Government of Botswana itself, have characterized the proprietary consequences of a customary marriage as in community of property with marital power, which essentially means that the husband is the sole administrator of the estate and the law permits the husband to bind the estate, lease or sell movable assets without the consent of the wife, regardless of the extent to which the wife has contributed to the estate. The

> 17 The term "public trader" referred to a woman who carries on any business, trade or profession in her own name, with the public 18 World Bank 50 Years of Expanding Legal Rights Across the World 2013. This meant that the husband could unilaterally decide to relocate to a place which might not be conducive to the wife’s existing business or location of employment.

> 19 Government of Botswana CEDAW Report 2008

> 20 Kumar 2010 Also M Athalia & Schapera cited footnote 54.  See also Kalabuma (2005) for detailed description of land vesting in jural communities, which in practice excluded women from ownership and participation in the administration of the land.

> 21 Quansah (date). See also Shapera 1984

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