Lord Alfred Denning, a legendary English judge, speaking in 1967 on reform to the law of divorce, stated: “We should do everything of course to maintain the marriage if we can, but if it be irretrievably broken down, let the empty shell be buried and done away with, with as much quietness and lack of bitterness and lack of humiliation as possible.”
On the other hand, the London Daily Telegraph, reporting on the changing socio-legal nature of marriage in 1983, stated: “Marriage as an institution is in a low state. With divorces running close to 200 000 a year, it is no longer till death do us part.”
To understand the frustration evident in the comments by Lord Denning and the Daily Telegraph, one need only look at the original institution of marriage compared to society’s present views on its sanctity.
Roman law was based on the principle of rebelum matrimonium, involving freedom of divorce by mutual consent or unilateral repudiation.
Divorce ought to have been a private matter of disassociation. Some authors state that in the early Middle Ages, the formation and dissolution of marriage concerned none but the parties and the families.
The longstanding call for law reform to make the process less cumbersome can be better understood by the socio-economic and cultural changes marriage has on couples’ lives.
These changes themselves might be a reason for short-lived marriages.
The annual number of divorce cases is astronomical. This is a failure of marriages on a grand scale.
The firm contractual binding nature of commercial contracts should not apply to marriages.
Marriages should only be based on honour, conscience and mutual love. A couple should be able, with a measured easiness, to dissolve marriage if it does not work.
In fact, South Africa’s Constitutional Court made this point when it stated that marriage is not only different from a commercial relationship in law, it is also different in fact.
It is capable of influencing and changing every aspect of a couple’s lives: where they live, how they live, who goes to work outside the home and what work they do, who works inside the home, their social lives, leisure pursuits, and how they manage their property and finances.
A couple may think their futures are mapped out when they get married but many things may happen to push them off course – misfortune such as redundancy, bankruptcy, illness, disability, obligations to other family members and especially to children, but also unexpected opportunities and unexplored avenues.
The couple is bound together in more than a business relationship so they modify their plans and often compromise individual best interests to accommodate new events.
MODERNISATION
Against this background, the Dissolution of Marriages Act should be a welcome development.
Before this law, a spouse wishing to end marriage had the difficult duty to prove fault-based grounds for divorce. This necessarily caused parties to reach out for any conceivable reason just to end marriage.
This is evident from a comment by the High Court of Namibia, in a divorce case, while it was considering counter allegations between a husband and wife.
It stated that the husband went to England on a scholarship to pursue his studies. When he returned in the year 2000, the defendant refused to have sexual intercourse with him.
It was suggested to him that the defendant explained the reasons for her refusal was because she had stayed alone for approximately two years, sexual intercourse became painful when he returned.
Therefore, as stated by the judge president of the High Court of Namibia, the new Dissolution of Marriages Act represents one of the most significant reforms in the history of Namibia’s family law system.
It seeks to modernise divorce law, reduce unnecessary hostility, simplify procedures, promote amicable resolution of disputes, recognise the realities of marital breakdowns, and ensure that divorce proceedings are conducted consistently with constitutional values and the best interests of the children.
The main philosophy of the new legislation marks a fundamental shift.
Previously, parties were required to prove matrimonial misconduct. Proceedings were highly adversarial and conducive to prolonged and costly litigation.
Of the more notable changes is that irretrievable breakdown is now the only grounds for divorce.
This makes it easy for either of the couple to simply show that the marriage has irretrievably broken down.
Unlike in commerce, where the sanctity of contract is a fundamental principle used to slavishly hold parties to a contract, I contend that the binding nature of a marriage should not be used to unyieldingly hold a couple to a marriage that no longer provides love, care and marital peace of mind.
The new divorce law represents one of the revolutionary steps in reforming our family law.
– Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and is the author of seven law publications.
