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Opinion - Divorce law and its implications on a divorce process

2022-09-23  Staff Reporter

Opinion - Divorce law and its implications on a divorce process

Kleopas Dumeni Kashala

Namibia’s current divorce law is an outdated system, inherited from the colonial government at independence, based on the fault system of divorce.

This means that one spouse must prove that the other spouse did something wrong, such as having an affair, leaving the family home or making life so unbearable that it is no longer possible to live in the same house. 

The fault-based system implies that couples who want to divorce have to stick into unhealthy or dysfunctional marriages that, in most cases, led to physical and emotional abuse.  

This approach does not fit well with reality, because the breakdown of relationships is frequently much too complicated to ascribe all the blameworthiness to one couple.

Marriage in Namibia is a constitutional right; article 14(1) of the Namibian Constitution stipulates that men and women of full age, without any limitation, shall have the right to marry. 

It further states that they shall be entitled to equal rights as to marriage, during marriage and its dissolution. 

If the Namibian Constitution, which is the supreme law of the land, gave equal rights to a couple to marry, enjoy marriage and dissolve it if they so wish, if my interpretation of the constitutional provision is anything to go by, one can conclude that there is a fault-based system in the violation of Article 14(1) of the Namibian Constitution. 

The Namibia divorce law potentially goes against article 8 (1) of the Namibian Constitution, which calls for the dignity of all persons to be respected. 

The current divorce law seems to violate a person’s dignity by requiring the couple to remain married, with all the obligations that go with marriage, where such a couple does not intend to continue with the marital relationship.

Further, in terms of Article 21(e), guaranteed freedom of association is one of the fundamental rights and freedoms of all persons.

This includes the right to decide to be with other people or not to be with them, as long as no unconstitutional discrimination is involved – and so it includes the right to enter into marriage and withdraw from it.

Our courts sometimes grant an order for restitution of conjugal rights to a husband or wife who had committed adultery. 

This means the court ordered the wife or husband to return to the husband or wife who had deserted him or her for someone else. 

One can further point out that the fault-based system is common law principles our court should not need to rely on to grant a divorce to the willing couple. 

Article 66 (1) of the Namibian Constitution states that common law shall remain in force only if it does not conflict with the Constitution. 

I must emphasise that the fault-based system of divorce in Namibia is based on the common law principle that should have been done away with, as in violations of various constitutional provisions mentioned herein.

The Married Persons Equality Act, 1996 (Act 1 of 1996), is silent on the issue of divorce. The Namibian Constitution should be the guiding legal instrument on the divorce process and not a common law fault-based system. 

One can point out that our law-making body (Parliament) needs to come up with legislation or amend the Married Persons Equality Act, 1996 (Act 1 of 1996), to make a provision for those who want the dissolution of their marriages. 

Under our current divorce law, when it comes to considering the dissolution of a marriage, it does not matter that the couple no longer loves each other or that the marriage has irretrievably broken down. 

A court may only grant a divorce upon proof that a spouse committed a matrimonial offence. 

Namibia’s current divorce law does not recognise that the marriage itself has broken down beyond repair; hence, divorce is unavoidable. 

In the case of adultery, where one spouse relies for dissolution of marriage on the malicious desertion of the other spouse, the desire of the one seeking dissolution is confounded if the guilty couple offers to return, despite the love and affection having evaporated. 

The divorce process in Namibia takes between 1-5 years, making couples stay in marriages without love and affection due to the fault-based system.

The dissolution of marriages should be made easy and simple. 

If civil marriages are administered or solemn by any magistrate court, the question remains as to why the same magistrate courts cannot have jurisdiction to dissolve the same marriages it has administered or solemn as opposed to the High Court and without the involvement of a lawyer.  

Another dilemma with the law on divorce is that it is almost impossible for a married couple to get divorced without the assistance of an attorney, regardless of their will of how they will divide their properties, custody and care of their children.

This, in the process, makes divorces in Namibia very expensive and unaffordable. 

Furthermore, divorce cases are only heard by the High Court in Windhoek or Oshakati. 

Despite the fact that divorce cases are practically always settled without a trial, it is still necessary for at least one of the spouses to appear in person in the High Court in Windhoek or Oshakati. 

This can also add expense, notably for couples who reside outside of the Capital City or Oshakati.

It can be concluded that the fault-based principle of divorce has to be abandoned in favour of an ‘irretrievable breakdown so that couples can enjoy peace of mind. 

If a court is satisfied that a marriage between a couple has no hope of being saved, the court must grant a dissolution of marriage without hesitation. 

I must point out that there is a number of marriages where couples are stuck into dysfunctional marriages, without love and affection; however, with the current law of divorce, they have no way out, making such marriages a fertile ground for physical and emotional abuse.

Henceforth, the call for the dissolution of marriages should be made easy and simple in the form of an irretrievable breakdown of a marriage.  

*This article is written by Kleopas Dumeni Kashala, a Warrant Officer Class2 in the Namibian Defence Force (NDF) and a holder of an LLB Honours Degree from the University of Namibia. The article is written in his personal capacity.  

2022-09-23  Staff Reporter

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