Focus on divorce 

A party may apply for a final order of divorce when there is a protection order (evidence of domestic violence), and the court may grant it.

H... v H... (HC-MD-CIV-ACT-MAT-2021-03719)[2022] NAHCMD 600 (3 November 2022) – the concept of Restitution of Conjugal Rights (RCR) discussed

In K v K (I 2987/2015) [2018] NAHCMD 126 (14 May 2018) para 17 the court, in reference to the learned authors Hahlo, ‘The South African Law of Husband and Wife, quoted the following excerpt:

‘Restitution of conjugal rights means the restoration of cohabitation as man and wife. The factum of the return must be accompanied by the intention to restore the marital relationship. There is consequently no restoration of conjugal rights if the defendant returns to the plaintiff under circumstances which show that he has no intention to resume marital cohabitation.’

It accordingly becomes plain that the order of restitution of conjugal rights is issued by the court in circumstances where there is a genuine and serious intention and willingness by the parties to resume the marital relationship. They must be willing to bury the hatchet and turn a new page in their otherwise stained marital relationship. It is an order that is normally granted by the court in good faith, with the express intention to afford the parties an opportunity to resuscitate the marital relationship, which may have, for whatever reason, ceased to exist. This is not an order that must be issued casually and in order to merely go through the motions.

I am of the considered view that in cases where allegations of violence are pleaded in the papers or where, as in this case, there is a protection order issued, it is most inadvisable for the court to order restoration of conjugal rights in that scenario. That is so because where the parties resort to violence one against the other, in the course of complying with a restitution order, the marital home to which restoration is ordered may be the very cradle of violence, if not the killing fields.

I have stated above that even allegations of violence should deter the court from ordering restitution because proof of violence may be too ghastly to behold once the violence that was alleged eventuates. Life and limb may be in serious jeopardy, which is an eventuality that must be avoided at all costs.

It has now become plain that in some cases, marriages have become loveless and the breeding ground for homicide, violence and verbal, economic and financial abuse. As such, where a likelihood exists that a party to a marriage may seize the opportunity provided by a restitution order to engage in the assault and denigration of the bodily integrity and dignity of the other spouse, then the restitution order should not be granted. 

Its purpose is to afford the parties a time, place, and opportunity to restore the marital relationship, and not to destroy one another’s life, person or dignity. A possibility that a person may be killed or maimed in the precincts of a marital home, in the name of the restoration of conjugal rights, points inexorably to the inadvisability of granting that order.

This reality and the possibly catastrophic results dawned on Cheda J in S v S (I 61/2015) [2015] NAHCLD 30 (08 July 2015) para 11-12. In dealing with the possibly calamitous consequences of issuing a restitution order, the learned judge remarked as follows:

‘It is my considered view that this is one of those exceptional cases where the plaintiff’s desire for a Restitution of Conjugal Rights is sought as a matter of course and lacks bona fides. In her own words under oath, she testified that she is afraid of the defendant. I, therefore, do not see the logic of her accepting the defendant back when there is a great possibility of violence or even death being carried out on her.

In my view, to allow the defendant to go back to the plaintiff is to tacitly grant him a licence to continue with his violent threats as he pleases. In fact, it is tantamount to asking (Dracula) the vampire to guard a blood bank. It is for that reason that I used my judicial discretion of granting the final order, thereby putting the plaintiff’s mind at rest.’

In point of fact, properly construed, the compliance with the restitution order, if issued by this court, would amount to a commission of a criminal offence, if regard is had to the terms of the protection order. There must be confluence in the actions and orders courts issue to parties appearing before them. An order that is appropriate and is in sync with the protection order and which also protects the life, dignity and bodily integrity of the plaintiff, is the issuance of a final decree of divorce in the instant matter.’

H… v H… (HC-MD-CIV-ACT-MAT-2021-03719) [2022] NAHCMD 600 (3 November 2022) – whether it is appropriate to issue a final order of divorce where there is an existing final protection order

The plaintiff instituted divorce proceedings against the defendant, which was defended, and the defendant further filed a counterclaim in which she sought a decree of divorce and payment of a certain amount to her by the plaintiff. The defendant, however, insisted that the divorce be dealt with together with the other pending issues. 

The court, nonetheless, proceeded to deal with the divorce proceedings first in order to eliminate issues not in contention between the parties. It became evident that there was a final protection order granted in favour of the plaintiff against the defendant on 14 June 2022. This protection order was valid for a period of two years. 

The plaintiff led evidence during the RCR proceedings, and upon finality thereof submitted that a final order of divorce would be appropriate in this instance instead of the RCR proceedings, because of the protection order.

The High Court considered the matter, and held that:

The order for a restitution of conjugal rights is issued by the court in circumstances where there is a genuine and serious intention and willingness by the parties to resume the marital relationship.

It is inadvisable for the court to order restoration of conjugal rights where allegations of violence are pleaded in the papers, and where a protection order is granted against one of the parties.

 It would send wrong signals to order a restitution order in the face of a protection order as it would seem to bystanders that the courts are speaking in contradictory terms.

As a result, a final order of divorce was thus granted in favour of the plaintiff, and the matter was referred to case management in respect of the outstanding issues.

S… v S…(I 61/2015) [2015] NAHCLD 30 (08 July 2015) - Court may use judicial discretion to refuse Restitution of Conjugal Rights if granting it will result in the plaintiff being threatened or assaulted 

The plaintiff was joined in holy matrimony with her husband in 2013 in the northern parts of Namibia. Their marriage started experiencing some matrimonial problems, which resulted in her filing for a divorce. 

The plaintiff issued summons against the defendant for divorce, and, amongst the reasons for divorce as stated by the plaintiff were that the defendant was emotionally and physically abusive, and in addition thereto has been negligent in his duties of looking after the family. Of serious concern was the threat to kill the plaintiff, which resulted in a report to the police, and the defendant was subsequently arrested and detained. The defendant was still in prison on the day of the hearing.

During the RCR proceedings, the plaintiff gave evidence as required by the Rules of Court in order to obtain an RCR order. In her testimony, she stated that her husband was in custody as a result of threatening to stab her with a knife, which he was holding. The said threat was accompanied by words to the effect that he was going to kill her, and, thereafter, take possession of their car. 

Despite the fact that he is in custody, he sent a message through his friend that he would kill her when he comes out of prison. 

The plaintiff’s legal practitioner then applied for a final order of divorce in light of the threats of violence, and the previous violent conduct of the defendant. 

After hearing this evidence, the Court used its judicial discretion and granted a final order without the issuance of an RCR order on the following basis. 

‘Plaintiff sought an order of divorce on the basis of, amongst other grounds, violent conduct on the part of the respondent. In terms of our law, a marriage can indeed be dissolved on good grounds shown. However, the procedure is that plaintiff should call upon the defendant to restore conjugal rights within a certain period, failing which a final order of divorce can be granted. The rationale for this requirement is the widely- held view of the sanctity of marriage. On that basis, our courts do not encourage the dissolution of marriages, hence the stringent requirements for a Restitution of Conjugal Rights’ order before the final order is granted. This is the correct legal position, and is indeed understandable. 

Of late, these courts have been inundated with cases of domestic violence, some of which have resulted in heinous murders mostly perpetrated on women in matrimonial relationships, which has put society in a state of shock. The whole nation is constantly in mourning as a result of the heinous murders it is experiencing. Our courts have also added their voices in expressing their disgust in this regard, as per Damaseb JP in Voigts v Voigts case I 170/2009 [delivered on 24/06/2013] that:

‘It is a notorious fact that women bear the brunt of violence in our society. The majority of this violence is perpetrated on women by men with whom they are in some sort of relationship: marriage is no exception. This is the phenomenon which in our public discourse is loosely referred to as ‘passion killing’... It is a sad paradox that even against that backdrop, Namibia retains a system of divorce laws which, rather than make it possible for women to extricate themselves from loveless marriages, require them to stay in there in the name of ‘sanctity of marriage’.

‘.… the prevalence of the scourge of violence in the family has decidedly tilted the legal convictions of the community in favour of condoning adultery and ending the marriage where the prospect of violence looms large in a dysfunctional union.’

The unavoidable question is, should the court close its judicial eyes and grant RCR where the circumstances are that defendant is likely to use that opportunity to return to his wife, not for harmony, but to perpetrate his abuse? The question then is, is this court prepared to take that conscious risk? The answer is certainly no, as by doing so, it will be abrogating its duty of protecting the weak from the mighty. Murders of women where the courts have granted them protection orders in terms of the Combating of Domestic Violence Act are not uncommon.

It is my considered view that this is one of those exceptional cases where the plaintiff’s desire for a Restitution of Conjugal Rights is sought as a matter of course and lacks bona fides. In her own words under oath, she testified that she is afraid of the defendant. I, therefore, do not see the logic of her accepting the defendant back where there is a great possibility of violence or even death being carried out on her… to allow the defendant to go back to the plaintiff is to tacitly grant him a licence to continue with his violent threats as he pleases.

As a result, the Court granted a final order of divorce, thus terminating the marriage.

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