A new marriage law will be enacted soon that will see all marriages, regardless of whether they occurred north or south of the redline, treated in the same way, in community of property, unless the spouses decide otherwise.
But people already married north of the redline who may want to change their marital regime would be required to first get a divorce and remarry again, if they are to benefit from the new piece of legislation. Deputy Permanent Secretary in the Office of the Judiciary Tousy Namiseb said that without first getting divorced, the current problem faced by couples north of the redline would persist for those already married. The soon-to-be enacted law will deal with that problem as parties will be given a specific period to act, but Namiseb said he did not want to pre-empt what the specific period would be.
Currently, marriages north of the redline are automatically out of community of property, unlike the default system that applied to south of the redline, Namiseb said.
“Meaning that parties are married but not aware they are married out of community of property. When they come to divorce or when one of the spouses dies, dealing with the estate becomes a problem,” he explained.
“There is a law which will be enacted soon and we have geared ourselves to provide the necessary support systems through availing magistrates and the court staff to implement the change of regime to ensure that parties do not enter disputes when the marriage ends,” he stated. Namiseb explained that if the parties marrying north of the redline want to marry in community of property, they are required to make a declaration to a magistrate that they want to marry in community of property.
Many people are not aware of that law and when they get married, they do so without making necessary declarations.
Asked if this cannot be changed, Namiseb said: “As the law stands now, once you have married and have chosen a specific regime it can only be changed with a divorce.”
“In some cases, parties are marrying north of the redline and the marriage certificate shows it is in community of property but that is erroneous - the operation of the law says it is out of community of property.”
“The law that will be enacted will change the regime so that all marriages, be it north or south of the redline, are treated in a similar way, in community of property, unless parties decide otherwise.”
Namiseb said the law is still to be tabled in parliament by the minister of justice.