Spouses who intend on divorcing will no longer have to travel to Windhoek or Oshakati as divorce matters will soon be heard in the lower courts.
The soon-to-be-tabled draft of the Divorce Bill has proposed for certain regional courts across the country to be given jurisdiction to hear and give orders pertaining to divorce, custody and guardianship. The lower court will, however, not be given powers to annul marriages.
According to Felicity !Owoses, head of legal drafting and acting executive director for the justice ministry, having only two courts dealing with divorce matters make the courts inaccessible to the larger population of the country, which consists of the poor and vulnerable people.
It also congests the High Court roll, leading to lengthy divorce proceedings. !Owoses made the remarks yesterday during a stakeholder consultative discussion of the Divorce Bill. The current outdated law dictates that spouses make an appearance in court in person, making the whole process expensive and inconvenient for the parties involved.
The new Bill thus proposes that the country does away with the fault-based grounds for divorce, where one had to prove that the other party is guilty of adultery, malicious desertion or is a habitual criminal. The Bill proposes a new system based on irretrievable breakdown. Furthermore, the Bill proposes that certain divorce proceedings may be heard in private and not in open court as is now.
“The Bill proposes that divorcing parties may request for the proceedings to take place in private and the court may only grant the order if the hearing of any evidence may bring harm to a child of the marriage,” explained !Owoses. The Bill prohibits the publication of the names of divorcing spouses and other information to protect children. Should a person be found guilty of publication, he or she will be fined N$100 000 and or five years imprisonment.
!Owoses said the current law obliges the court to first grant order restitution of conjugal rights order for six weeks before the final order for divorce is granted. “This may not always be conducive and appropriate in cases where domestic violence is involved and thus can aggravate the family conflict. We are basically forcing people into undesirable circumstances,” she noted. She added the Bill would make it possible for spouses to make a joint application for divorce if they agree that the marriage has failed.
This, she said, encourages mediation and settlement agreements, in an attempt to reduce conflict. For children of the marriage, the Bill proposes that no final divorce order will be granted until issues of custody, guardianship or access to a child of the marriage and the maintenance of a child are resolved.
“In order to protect persons with diminished mental capacities, the court must appoint a curator to deal with their affairs,” said !Owoses. Speaking at the same event, justice minister Yvonne Dausab said the main purpose of the amendments is to ensure access to the courts and to speed up the divorce process, which in turn will cut costs to divorcing parties.
“Divorce fees are prohibitive and may not be affordable to institute divorce proceedings. You will find that in order to open a file with a lawyer you may be required to pay a minimum of N$6 000 and due to the back and forth, the amount can go up to N$50 000 for the whole process,” explained Dausab.
She added the ministry wants to promote the “DIY” divorces, where a party can represent themselves. This, she said, will reduce the financial burden on the poor and vulnerable who are unable to afford the high legal costs currently associated with divorce proceedings.
Dausab said the amendments are not to encourage people to divorce but to make the process easier, accessible and not traumatic.