The law on divorce and dissolution of marriages in Namibia

Abstract

Abstract provided by author

Divorce or the dissolution of marriages has been and still is a complex reality. With divorce statistics said to be on the increase[1], the existing divorce procedures continue to be too formal and complicated for being almost impossible for individuals to navigate without legal professional assistance,[2] never mind the cost factor involved. It is rather unfortunate that at times, spouses opt to lose the protection of the law due to the cumbersome processes involved in divorce matters. The questions that need to be assessed are whether the current divorce laws are still relevant in today's society and how the divorce process can be simplified. What alternative legal means if any, can be employed to make the divorce process less confrontational and more a peaceful settlement, that will enhance the relationships of all parties involved, particularly when there are children involved if any.This will ensure that custody, control and maintenance issues are dealt with in a cooperative manner between the divorce parties. The paper aims to postulate a discussion that looks at the types of marriages recognized in the Namibian legal system and how laws apply to such marriages. Further discussions in the paper will include the creation of an understanding of the consequential aspects of each of the type of marriage that is discussed. Further considering the fact that traditionally, certain aspects of the law of inheritance such as interspouse inheritance, were always closely discussed and associated with the laws of marriage, a reference to inheritance laws as they are relevant to marriage laws will therefore be made in the paper. Other focus areas of the paper will include: A discussion on the rationale behind the promulgation and the continuous application of the Native Administration Proclamation 15 of 1928 which provides for a default matrimonial property regime of marriages north of the red line, and what its relevance is in today's Namibian society; A discussion on customary law, its position under the common law and under the Namibian constitution; The accessibility of divorce justice in Namibia (divorce legislation) and the need for divorce law reform, which is aimed at consolidating the existing but scattered divorce legislations in Namibia; Moving towards a more peaceful divorce settlement, mediation as a possible means of dissolving marriages as opposed to litigation. What are the prospects of mediation being an effective means, affording the parties the opportunity to resolve disputes themselves, including property division on an equitable basis and arrangements made by the parties themselves that are in the best interest of the child, in respect of maintenance and custody; Revisiting the fault base system which provides that, to obtain a divorce, the spouse seeking a divorce must prove that the other spouse committed a wrong which is recognized by law as a ground for divorce, usually adultery or malicious dissertation