Divorcing the divorce law

Lahja Nashuuta

 

Windhoek – Namibia is doing away with its current divorce law, which has been described as expensive, inaccessible, traumatic and archaic.

Married couples yearning to get out of their undesirable unions can breathe a sigh of relief after Parliament finally moved to modernise the divorce regime.

The Divorce Bill is among 14 pieces of legislation lined up for tabling during this year’s Parliamentary session. The new Bill, to be tabled by the Ministry of Home Affairs and Immigration, seeks to replace what is deemed an out-dated colonial divorce law.

For close to three decades after independence, Namibia relied on the Divorce Law Amendment Ordinance 18 of 1935 inherited from South Africa.

The current law has been criticised by both legal experts and the general public for being too cumbersome and making divorce unaffordable for most Namibians.

Couples who lack the financial resources necessary to open divorce cases at the High Court are forced to remain in broken marriages, while others opt to just separate as a means of avoiding the high cost of divorcing.

Under the Divorce Law Amendment Ordinance 18 of 1935, divorce cases of civil marriages are only heard in the High Court – in Windhoek and Oshakati after 2009 when the High Court opened a branch in northern Namibia.

The legislation renders divorce in Namibia an expensive undertaking for those who cannot afford legal representation.

According to the Legal Assistance Centre, an unopposed divorce case costs between R5,000 and R10,000, while opposed cases typically cost between R30,000 to as high as R100,000.

President Hage Geingob recently spoke against archaic laws that still exist in the country’s law books and called on Parliament to repeal them.

“We should ensure that all unjust laws of the past regimes are replaced with just laws. Our people cannot continue to be subjected to archaic and discriminatory laws anymore,” Geingob made the call during the official opening of the 9th Session of the 6th Parliament a week ago.

Justice Minister Sacky Shanghala has stated that the Divorce Bill is expected to simplify divorce trials and remove economic constraints.

Shanghala noted that once passed, the divorce law will eliminate major barriers such as the ‘fault-based grounds’ for divorce. Which sets a prerequisite that for a marriage to be annulled, one of the partners must have committed some form of wrongdoing - usually some form of malicious desertion or adultery.

The justice minister further explained that the new law would instead allow divorce on the grounds of irretrievable breakdown of marriage, “in recognition of the fact that the real reason for most divorces is not that one party has committed some wrong, but rather that the marriage has broken down beyond repair”.

He added that once the new law is enacted, it will simplify the divorce procedure, particularly in cases where the parties have no real dispute about their divorce or the terms of the divorce.

The jurisdictional downgrading or transferring power to regional magistrate’s courts for the adjudication of divorce cases is another major relief. Not only in terms of cost reduction but also ensuring accessibility of the courts to the citizens as well as reducing the High Court workload.

Chisom Okafor, a senior legal officer at the Law Reform and Development Commission of Namibia, said the simplification of the divorce proceedings would make it possible for parties to represent themselves, and would thus reduce the demands on the state legal aid system.

“If it is an unopposed divorce, there will be no need for one to make use of a lawyer but if it is opposed then there will still be a need for one to have a legal representative,” Okafor said.

She added that the new divorce law is “going to be less formal and less complicated in comparison to the current law as the process will be shorter”.

The Divorce Bill also proposes that certain matters relating to the custody of children be clarified and that additional protections be put in place to ensure that children’s best interests are being met.

It further proposes that courts be given a discretionary power to distribute marital property fairly, to eliminate injustices that can occur from the strict application of the existing marital property regimes.

The Bill also seeks the simplification of issues such as summonses to be worded in clear and simple language and that standard forms for affidavits be supplied at all magistrate’s courts, where clerks could be trained to assist people in completing them.

It also makes provision for all divorce cases to be dealt with primarily on the basis of affidavit evidence, with the parties summoned to appear before a magistrate in chambers or in court only when there are potential problems or a need for further evidence. This would reduce the costs and the trauma of divorce, and take pressure off court rolls.

Justice Minister Shanghala echoed President Geingob’s concern about the presence of apartheid-era laws still on the statues books. He further asserted that there are about 144 discriminatory and out-dated pieces of legislation in need of amending if not abolishing.

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