Renthia Kaimbi
Men will be required to declare all their customary wives before entering into a civil marriage with someone else, according to the new Marriage Act of 2024.
While still not in force yet, the Act somewhat introduces the recognition and regulation of customary marriages at the ministry of home affairs, immigration, safety and security.
The legislation (Act No. 14 of 2024), signed into law on 2 October 2024, repealed the colonial-era Marriage Act of 1961 and mandated a uniform system for all marriages in Namibia.
For the first time, customary marriages will be recognised through a formal process, as a measure designed to ensure marital clarity.
The Act defines a “customary marriage” as one concluded or recognised under Namibian customary law, or even under the customary law of another country.
However, it explicitly excludes same-sex unions, whether concluded outside Namibia, and any marriage from another country that would not be legally valid in Namibia.
The new Act only governs civil marriages. Customary unions are still celebrated according to the traditions of each community, and registering them requires its own dedicated law.
“This exclusion does not make customary marriages unlawful; customary marriages remain constitutional under Article 66 of the Constitution of Namibia,” the ministry previously announced.
The Act’s notification and pre-marriage confirmation process requires every intending spouse to disclose whether they are already a party to a subsisting customary marriage.
If so, they must provide the full names, surnames, identity numbers, and any other prescribed information of their customary spouse or spouses.
This declaration is a pre-requisite for obtaining a pre-marriage confirmation, valid for 90 days and renewable only once.
Public policy analyst Marius Kudumo views this disclosure requirement as a practical mechanism.
“I assume that the identification is intended as a disclosure mechanism and to manage the property regime during the dissolution of the marriage,” he told the Windhoek Observer on Monday.
Additionally, if either intending spouse is already in a customary marriage, the matrimonial property regime chosen for the new civil marriage may not be in community of property.
This aims to protect the assets of the first customary spouse.
“It is good, but what about a marriage beyond the Redline being automatically out of community of property? This is the contention. Why can someone there not decide on the type of marriage regime?” he questioned.
Kudumo raised further concerns about this restriction. He argues it may perpetuate colonial-era discriminatory practices, specifically referencing the Native Administration Proclamation of 1928, which imposed different marriage regimes on black Namibians based on geographic location.
“Prohibiting customary marriages to civilly marry in community of property might perpetuate the discriminatory colonial practice of marriage beyond the Redline as per the provisions of the Native Administration Proclamation 1928 and might be discriminatory,” Kudumo warned.
He questioned why the law would continue imposing restrictions after independence.
Drawing attention to constitutional implications, Kudumo pointed to the right enshrined in the Namibian Constitution for everyone to profess and practice their culture and tradition.
“Why should after independence laws continue to perpetuate discrimination and colonial objects while the Constitution outlaws discrimination?” he added.
The Act also prohibits the issuance of a pre-marriage confirmation where either party is under 18.
Anyone who has reached 18 but is not yet 21 must obtain written consent from their parent(s), legal guardian, or another person authorised by law or court order. This brings marriage law in line with broader child protection frameworks.
The Act forbids marriage between parents and children in the direct line, as well as between collateral relatives who share a common grandparent in the first degree of descent.
However, this prohibition does not extend to first cousins or cousins in any other degree, meaning such marriages remain lawful.
Marriages by affinity are also addressed. The Act permits a widow, widower, or divorced spouse to marry the sibling of their former spouse, or any more remote relative by affinity other than a parent or child of the former spouse. It, however, allows a spouse to marry a step-parent of their divorced or deceased spouse.
Despite comprehensive reforms, inheritance concerns remain unresolved. Children from customary marriages are often excluded from inheritance, as civil wives are usually entitled to inheritance upon the husband’s death. The new Act does not directly address succession rules for these unions.
The Act explicitly defines marriage as a union between “persons of the opposite sex,” excluding same-sex unions and reversing recognition of such marriages from abroad.
Ministerial officials emphasised that the Act aims to bring legal clarity to marriage, including customary unions long governed by unwritten customs.
