Shangala calls for more marriage regimes
THE chairperson of the Law Reform and Development Commission, Sacky Shangala, says provision should be made for the introduction of several other marriage regimes in the country.
Shangala made this observation in an interview with Nampa recently, following a family law workshop which the Law Reform and Development Commission held in Swakopmund in July.
He said in the commission’s proposed plan of action, which will be tabled in Parliament soon, it advised that more marriage regime systems should be introduced.
Currently, there are two marriage regimes applicable in Namibia – customary and civil, with ‘in community of property’ and ‘out of community of property’ being options under the civil marriage regime.
Shangala said many issues were raised during the workshop which suggested further consultation on customary marriages and introducing polygamous marriages.
“Another area of focus was customary marriages, which are not really recognised by law, and whether we should have marriage registers for customary marriages and also if the dissolution of such marriages should be recorded,” he said.
A customary marriage is a marriage which takes place in terms of the customs of the community.
Shangala said the problem with this marriage regime, as interpreted from the Namibian Constitution Article 14 (2), is that it does not correspond to a number of issues pertaining to the recognition of a marriage under common law.
A working document that the commission drafted during the workshop stated that although customary law provides answers in some instances, to a certain extent these answers are neither mutually inclusive nor sufficient to cure the everyday predicament in which societies find themselves.
Shangala said it is extremely challenging to prove the existence of a customary marriage, adding that there is no reliable record of marriages celebrated under customary law.
“Thus, during our deliberations in the family law workshop, it was motivated that there is an exigent need to legally recognise customary law marriages, and this acknowledgment must also be extended to customary marriages already in existence,” he said.
Shangala indicated that the commission also decided to undertake visits throughout the country to meet with traditional authorities before the end of the year to look at the intersect succession of people in customary marriages – those who live partly in town and partly in villages – and to determine how to dissolve such estates.
Meanwhile, on the issue of divorce, which is labelled as a cumbersome and costly process in Namibia, Shangala said the commission wants to bring in a new grounds for divorce, which is ‘irretrievable breakdown’.
“In future, people will be able to divorce for the reason that the marriage has broken down beyond repair, and that only the courts can still retain the discretion if they see that these people can still resolve their problems,” he explained.
Shangala said this approach removes the problem that some customary reasons for divorce are not equal for men and women, such as adultery.