Lahja Nashuuta
Justice Minister Yvonne Dausab will table the amended divorce bill in Parliament today.
She said the current divorce bill is not in line with the existing socio-economic conditions in Namibia, and is governed by outdated legislation.
Dausab said the new bill intends to enhance access to court, and speed up finalisation of divorce matters by empowering the magistrate’s courts to deal with certain divorce matters, as well as to allow for a procedure in joint application proceedings in cases where parties to a marriage agree that the marriage has irretrievably broken down.
The new law further intends to promote “do it yourself” (DIY) divorces, thus reducing the financial burden on the poor and vulnerable who are unable to afford the high legal costs currently associated with divorce.
Dausab further said the new law intends to remove the fault-based grounds for divorce, and introduce a new system based on irretrievable breakdown of the marriage.
Currently, divorce is granted on the grounds of adultery, malicious desertion, mental illness and habitual criminal behaviour.
These grounds, except for mental illness, are based on the principle of fault, meaning the person instituting a divorce action must state and prove the facts establishing at least one of the four grounds, said the minister.
The other party can accept or deny these facts.
The court will only grant a divorce order if it is satisfied that the party that instituted the divorce action has proved one of these four grounds.
However, the new Act intends to abolish the mandatory requirement of issuing restitution of conjugal rights, as it has the likelihood of aggravating family conflict and domestic violence.
Also, the law will provide for the privacy of certain divorce proceedings and proceedings of annulment of marriage to protect children, and to provide for restrictions on the publication of certain court proceedings, she said.
Legal practitioner Natjirikasorua Tjirera has hailed the introduction of the new divorce law as moving in the right direction, as the current Divorce Act creates a cumbersome process.
“A move away from fault-based grounds is likely to reduce the bitterness of divorce proceedings. It’s of paramount importance that the divorce process be made less complex to ensure it can be done without complications. Currently, it is very expensive for people to divorce because people must involve lawyers to get the divorce,” he said.
The current process, whereby only the High Court can issue a decree of divorce, even though the process of getting married is very easy and a lawful marriage can be concluded in churches and magistrates’ courts, has made the process difficult.
Tjirera further argued that the cumbersome process has led peoplewho are no longer in love to remain married to one another.
“The current process is also a recipe for disaster, as people separate and marry other people, only for those new marriages to be declared null and void because the first marriage was not nullified,” he said.
He added: “The old Act requires specific grounds to be present before the divorce can be finalised.” I hope that the mere falling out of love or a realisation by the parties that they no longer wish to be married to one another should be enough for a decree of divorce to be issued. I will also suggest that the return of the conjugal rights order, which is part of our divorce law currently, be removed.”
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