Old Divorce Laws Need Updating

The Law Reform and Development Commission (LRDC) has proposed limits on the return of bridal wealth in a divorce, saying this may prevent women from asking for a divorce and may thus trap them in violent relationships.

The LRDC also suggests that grounds for divorce be based on “irreversible breakdown” of marriage and not on the fault basis as is currently the case. It further suggested that such grounds be included in the application of divorce laws in customary law marriages.

The proposals are outlined in a 2012 LRDC report on issues related to family law in Namibia, which says a multitude of customs in the country make it difficult to provide laws that are inclusive and respectful of all customs and traditions while remaining in tune with modern, secular and international practices.

The report suggested that issues such as mental illness or continued unconsciousness be seen as a special form of irretrievable breakdown, as this would provide special safeguards for the protection of the property rights of the mentally ill on the point that no relationship can continue to the point of no recovery.

The LRDC also suggested that on the issue of jurisdiction, divorces should not be granted in the High Court in Windhoek and Oshakati alone, saying that jurisdiction must be expanded to be more accessible to the populace.

“Services must be brought closer to the people. LRDC should explore possible methods for opening up the process to magistrates,” the report said.

Moreover, the LRDC proposed that magistrates should perhaps have jurisdiction over divorce at least in instances in which there are no children, no marital property disputes and when divorce is unopposed.

It was also proposed that magistrates have jurisdiction where the property of the marriage is below a set value similar to the criteria for giving magistrates jurisdiction over deceased estates.

Home Affairs and Immigration currently automate the birth, death and marriage registers. However, the LRDC says after consulting with the High Court, it became apparent there was no database indicating the rate of divorce in Namibia.

“A system for recording divorce records must be established and implemented. There must also be mechanisms to capture customary divorce records in writing. As a means to provide certainty, a divorce certificate must balance the marriage certificates for customary marriages,” the report noted.

It also suggested that retirement funds and life policies be considered as deemed assets so that an appropriate portion of the anticipated proceeds be taken into account when division of the estate of a marriage comes about.

Source : New Era