Law seeks to make it easier to say ‘I don’t’
16 March 2021 | Social Issues
The steep financial and emotional costs involved in obtaining a divorce in Namibia could be eased greatly if a proposed amended divorce bill is tabled and endorsed later this year.
The justice ministry recently confirmed that it intends to table the amended divorce bill in July 2021 in the National Assembly.
An amended divorce bill has been on the cards since at least 2016.
If enacted, the law will overhaul the current law, which has been described as archaic and potentially harmful as it traps unhappy couples in marriages that have soured or are violent.
For many the complicated and pricey divorce proceedings form an impenetrable barrier and keeps people trapped in toxic and dangerous marriages.
“Couples who lack the financial resources necessary to open a divorce case may be forced to remain married, even while perhaps living separately,” a Sister Namibia report titled “Divorce in Namibia: A Real Struggle”, warns.
Dianne Hubbard of the Legal Assistance Centre (LAC) explained that “the difficulty of getting a divorce under the current law contributes to domestic violence, by trapping people in unhappy or violent relationships”.
Moreover, couples who choose to remain married due to the costs involved cannot resolve property issues and children are harmed in these toxic relationships.
In 2013, Judge President Petrus Damaseb described the country’s divorce law as “archaic” and stated that “a more fertile ground for violence in the family is hardly imaginable”.
He said the law was in need of urgent reform.
Currently, divorces can only be obtained at the High Court in Windhoek, and require each party to obtain a pricey lawyer and assign blame to the other.
The new law will be based on a faultless system in which parties can cite irreconcilable differences as the reason for ending their marriages. Moreover, the new law aims to reduce the need for lawyers and could include options to obtain a divorce by paper applications, instead of personal appearances at the High Court.
Currently, uncontested divorces in Namibia have a starting price of at least N$10 000 and N$13 000, but the price can rise quickly during contested and drawn-out divorces.
The justice ministry recently explained that although the divorce bill has received cabinet approval in principle, it still requires the approval of the Cabinet Committee on Legislation (CCL).
“Internal consultations are still taking place between the justice ministry and the Office of the Judiciary before further public consultations can be conducted to ensure that the bill is practical and meets the objectives of creating an easy, cost-effective court process.”
Dusting off laws
Apart from reforms to Namibia’s rape, domestic violence and divorce laws, the justice ministry is also working on a uniform matrimonial property regime bill, which the ministry intends to table in the National Assembly in June this year.
According to the LAC, this bill would “remove persisting racial discrimination in the rules on marital property regimes. Under the current law - the Native Administration Proclamation 15 from 1928 - which remains in force, there is one default regime for black people in certain sections of the country and another default regime for everyone else.”
The bill would make in community of property the default regime for everyone who enters into a civil marriage.
The justice ministry advised that the marriage bill is also approved in principle by cabinet (in 2019) and was subsequently approved by the CCL in October 2020.
Final changes have been made to the bill and the justice ministry intends to table it at the NA in June 2021.
A civil registration bill has also been submitted to the CCL for approval, the justice ministry confirmed. “It is also making satisfactory progress in line with the law-making process.”
This bill will make it easier for single parents of either gender to register the birth of their children, and will also assist children whose parents lack documentation and who might otherwise be stateless.