Erasmus Shalihaxwe
Yvonne Dausab, the Minister of Justice said the proposed amendments to Namibia’s divorce laws are not aimed at making it easier to break up families.
She asserts that lawmakers must carefully consider and balance the rights and needs of all parties involved when making laws.
The minister said this on Tuesday in the National Assembly while motivating the divorce bill.
She said the proposed reforms seek to address the reality that current divorce laws may not adequately support individuals in untenable and harmful marital situations.
“The intention is not to undermine the institution of marriage but to provide a legal framework that offers necessary relief and protection to those in desperate situations, such as victims of domestic abuse or irreparable marital breakdowns,” she said.
Dausab added that currently, obtaining a divorce is a cumbersome process.
“It is often necessary for one party to cite a fault on the part of the other. However, making allegations about a spouse’s conduct within matrimonial proceedings to legally dissolve a marriage has been shown to create or exacerbate conflict during already difficult circumstances. It has also often been used to embarrass and humiliate spouses that would otherwise still want to remain in the marriage,” she said.
She cited the case of Voigts vs. Voigts, in which the plaintiff filed a divorce action based on the defendant’s admitted adultery but was unable to succeed because the plaintiff had had voluntary sexual contact with another man.
The defendant’s constructive and malicious desertion was the only remaining ground.
The plaintiff had to demonstrate both the defendant’s clear intention to leave and the facts of desertion.
Dausab argued that if the proposed law had been in place, such complications could have been avoided.
“In that case, the judge said there is not a single modern constitutional democracy where the fault-based principle of divorce has not been abandoned in favour of “irretrievable breakdown’ or some other more flexible criteria, such as the parties having lived apart for a certain period,” she said.
The minister added that Namibia’s law requires courts to keep couples together as long as one spouse wants to remain married, even if the marriage is beyond repair.
She criticised this approach, claiming that it is based on antiquated legal principles that ignore a spouse’s desire to end the marriage.
