Lahja Nashuuta

The divorce legislation makes the dissolution of marriages in Namibia simpler, fairer and more humane, with a strong focus on the welfare of children. The new law to replaced outdated and complicated divorce procedures with a system that is easier to understand and accessible.

The law, which was assented by former president Nangolo Mbumba in October 2024, spearheaded by then justice minister Yvonne  Dausab is now in the hands of her successor, Fillemon Wise Immanuel, for implementation.

Motivating the law late last year, Immanuel said it would streamline the divorce process, protect children, and provide clear rules for the division of property and maintenance.

He acknowledged that the previous divorce regime often failed couples at their most vulnerable.

“Many people found it challenging to navigate the system, especially when faced with emotional and financial hardships,” Immanuel told the Parliament.

The law brings together and updates existing divorce laws to ensure that cases are handled more efficiently and fairly, while placing greater emphasis on the protection of children and vulnerable spouses.

One of the major changes introduced by the bill is the removal of fault-based grounds for divorce, such as adultery or desertion. Instead, “divorce will be based on a single ground: the irretrievable breakdown of the marriage,” article 2(C) of the Bill reads.

According to Immanuel, this means the court only needs to be satisfied that the marriage cannot be repaired. “The focus is no longer on blame, but on whether the relationship has broken down beyond reconciliation,” he said.

This change is expected to reduce conflict between divorcing couples, as spouses will no longer be required to prove wrongdoing. The court will also be given stronger powers to divide marital property fairly, even where this means departing from antenuptial agreements that could lead to unjust outcomes.

The Dissolution of Marriages Act also allows courts to simplify divorce proceedings where there is no real dispute between spouses. In such cases, divorces may be finalised without either party appearing in court, provided there are no concerns about property division or the welfare of children.

Children

A key feature of the Act is its emphasis on children’s rights. Courts will not grant a divorce unless they are satisfied that proper arrangements have been made for custody, guardianship and child maintenance.

Decisions on who cares for the children will be based on their best interests. Joint custody may be allowed where both parents are fit and able to work together. Courts will consider factors such as emotional support, communication between parents and living arrangements.

Both parents will remain legally responsible for financially supporting their children. Maintenance orders may include monthly payments or lump-sum contributions, and courts may request reports from social workers to ensure that the proposed arrangements are suitable.

Dispute resolutions

Before applying for an order for the division of assets, custody, guardianship of, or access to a child of the marriage and the maintenance of a child of the marriage in terms of this bill, “the parties to the marriage have the duty to attempt to resolve matters relating to the division of assets, custody, guardianship of, or access to a child of the marriage and the maintenance of a child of the marriage, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” according to article 5(1) of the new bill.

Furthermore, in dividing marital property, the courts will consider the type of marriage, each spouse’s contributions, the length of the marriage and the future needs of both parties. The court may also order the forfeiture of benefits if it finds that one spouse would unfairly benefit from the marriage.

Article 8(2) reads as follows: “For the purpose of making an order in terms of this section, the court may order either of the parties to the marriage to provide details of his or her assets and liabilities, including any order made in respect of an asset in terms of the Prevention of Organised Crime Act, 2004 (Act No. 29 of 2004) or any other law.”

Conjugal rights

The legislation also abolishes restitution of conjugal rights and judicial separation. These mechanisms, rooted in outdated societal norms, have long been criticised for their impracticality and failure to reflect the realities of modern relationships.

The Cornell Law School defines ‘conjugal rights’ as the mutual rights and privileges between two individuals arising from the state of being married. These rights include mutual rights of companionship, support, comfort, sexual relations, affection, joint property rights and the like.

Under the pre-existing legal regime, restitution of conjugal rights required one spouse to demand that the other return to the marital home and resume marital duties. If the respondent fails to comply, it serves as a basis for divorce.

This process, inherited from colonial-era legal traditions, has been accused of placing unnecessary strain on an already fractured relationship. It forced couples into a performative exercise that bore little relevance to the underlying issues leading to the breakdown of the marriage.

–lnashuuta@nepc.com.na