Patience Masua
& Anupriya Dhonchak
In an era where the complex web of relationships weaves its own narrative, Namibia’s divorce laws are at a critical juncture, demanding an evolution that reflects the intricate realities of human bonds and the evolving dynamics of contemporary society.
The existing divorce legislation in Namibia relies on assigning fault, necessitating one spouse to demonstrate the wrongdoing of the other. Currently, the four grounds for divorce consist of adultery, habitual criminality, mental disability, or malicious desertion for prolonged periods. This oversimplifies the reality that relationships can unravel due to a combination of factors involving both spouses.
‘Irretrievable breakdown’ as a ground for divorce to reform Namibian divorce law recognises the pragmatic reality that some unions reach a juncture beyond repair, circumventing the need for protracted and emotionally taxing blame games. The current fault-based system escalates tension and animosity between spouses and often dredges up sensitive and personal matters, intensifying emotional distress for both parties and any children involved. It fosters an adversarial environment, making amicable resolutions more challenging. More worryingly, it prolongs legal proceedings, making it more costly and thus less accessible to those who may need it the most. This not only burdens the divorcing couple but also adds pressure on an already strained judicial system.
Further, divorce cases are currently heard only by the High Court in Windhoek. The extension of jurisdiction in divorce matters to magistrates and potentially regional courts is another welcome proposal which would make the dissolution of marriages more accessible and affordable.
The proposed amendment Bill, according to the Legal Assistance Centre, removes the provision mandating restitution of conjugal rights. Although the provision is facially neutral i.e., it does not discriminate between husband and wife, formal equality of treatment which ignores substantively unequal realities is neither just nor constitutionally sound. As per the United Nations Population Fund (UNFPA)’s latest statistics, at least 32% of Namibian women have experienced physical violence from an intimate partner at some point in their lives. The High Court of Namibia in a progressive judgment in Homba v Homba [2022] NAHCMD 600, held that an order for restitution of conjugal rights should only be issued where there is a genuine and serious intention and willingness by the parties to resume the marital relationship. The Court also cautioned that such orders should not be granted in cases where there are allegations of violence on paper against either party. It is trite that domestic violence is severely underrep
orted all across the world and thus, allegations may not exist on paper in a majority of cases, exacerbating the risk of instances of violence via forced cohabitation. Further, to what extent is it even possible for Courts to assess one party’s “genuine and serious intention” to resume the marital relationship especially when it goes against the stated wishes of the other party? Marriage does not mean that a person renounces her right to personal liberty and privacy, to be held hostage to another party’s so-called ‘serious intention’ to resume the relationship.
The Kenyan Supreme Court in the 2022 case of National Assembly of Kenya v Tukero Kina held section 66(1) of the Kenyan Marriage Act of 2014 as unconstitutional based on similar reasoning. The Act recognises irretrievable break-down of marriage as a ground for divorce. However, S.66(1) limited parties to a civil marriage to a three-year waiting period before any of them could petition for divorce. The Court held that this had a ‘disproportionate effect’ on the parties involved. It noted that the public benefit of protecting the family unit needed to be fairly balanced against the private interests involved in a marriage. In doing so, it crucially quoted from the UK’s Law Reform Commission in its Report on Family Law (Law Com No 192), “If people who are unhappily married are denied a means of reordering their lives in a sensible fashion, many of them will simply walk away. Others may be deterred from marrying in the first place.”
However, making divorce easy should not compromise women’s access to marital property. The notion of “forfeiture of patrimonial benefits” is still applied under the current law. In marriages which are in community of property, assets are divided in half upon divorce. Since spouses would have typically contributed unequal amounts in monetary income, the 50-50 division is understood as one spouse gaining some “benefit” from the other spouse’s contributions. Under current law, a spouse who received a ‘benefit’ may be required to ‘forfeit’ it if they have engaged in marital misconduct. In societies, where husbands usually earn more, this will result in mostly wives being financially punished for misconduct because a husband, who for instance, commits adultery, will have no ‘benefits’ to ‘forfeit’ where he has financially contributed more to the marriage.
In societies influenced by traditions, marriages hold material and symbolic value, particularly for women. Easy divorces without equitable rights to marital property can render women economically and emotionally insecure. This would be particularly detrimental to wives who do not work outside the home but have contributed immensely to long-term marriages. Since men are primarily considered to be breadwinners in our society and women are expected to disproportionately bear the burden of caregiving and child-bearing and rearing duties, women’s labour is likely to be devalued in determinations that do not regard marriage as an economic partnership.
The Divorce Bill grants courts the discretion to divide assets to achieve fair outcomes based on certain enumerated factors including, the underlying matrimonial property regime, the duration of marriage, direct and indirect contributions of each spouse (including domestic duties and child care), their respective financial positions, which spouse will have custody of any children of the marriage, and whether one spouse will be paying spousal or child
maintenance. This determination should be sensitive to the rights of women to marital property by affording due recognition to their contributions, regardless of whether they occur in the home or outside it.
Finally, we must foster open dialogue among stakeholders, as collaboration among legal experts, women’s groups, families, and community leaders will refine the law, keeping in mind the best interests of a diverse class of people especially those whom the divorce process renders more vulnerable.
*Patience Masua, MP is a Member of Parliament and a member of the Standing Committee on Constitutional and Legal Affairs.
*Anupriya Dhonchak is a lawyer and Rhodes scholar, working as an Oxford Bonavero Fellow.
