IN 2024, THE National Assembly passed a bill called the dissolution of marriage into the Dissolution of Marriage Act 10 of 2024.
The act, therefore, repealed the following legislations in Namibia: Divorce Laws Amendment Ordinance, 1935, Matrimonial Affairs Ordinance, 1955, Matrimonial Affairs Amendment Ordinance, 1967, Matrimonial Causes Jurisdiction Act, 1939, Matrimonial Causes Jurisdiction, 1943, Matrimonial Causes Jurisdiction, 1945, Matrimonial Affairs Act, 1953 and the General Law Amendment Act, 1968.
The old divorce regime informs civil divorce frameworks across the country, which were designed to dissolve the marriage between couples through fault-based divorce systems.
Such divorce regime required that, for a marriage that was contracted in terms of the Marriage Act 25 of 1961 to be dissolved, spouses should plead grounds that give rise to the institution of divorce proceedings in the High Court of Namibia by pointing out faults or accusing the other partner of wrongdoing.
Some of the grounds recognised under the old divorce regime were inter alia; adultery, violence, mental disorder, cruelty, desertion or habitual criminality etc.
The new divorce regime that came into operation on 3 June introduced a new grounds for divorce: the marriage between the parties is irretrievably broken down with no prospect of restoration.
The new law abolishes the adversarial litigation system that saw spouses in rivalry positions.
It now obliges them to undergo mediation proceedings as a means of dispute resolution and they can now enter into a settlement agreement to terminate their marriage, provided such settlement agreement is done freely, lawfully and enforceably.
According to the new law, divorce proceedings can now be instituted in magistrate courts as well, although it is not clear whether the Magistrate Court Rules are also amended to accommodate such a new approach.
Some key factors to be taken into account by the court include, but are not limited to, the interest or welfare of minor children of the marriage, spousal maintenance, division of assets and that spouses should disclose their financial position before such marriage is dissolved.
Failure to do so is a criminal offence.
This new regime does not go without challenges as the court now needs to inquire the financial position of the spouses to divide the marriage’s assets between them fairly and equitably, irrespective of financial contributions by either party.
This may be beneficial for the court when inquiring into a couple’s assets, but it could also place one or both parties at risk if their net worth becomes known, potentially making them targets for scammers and criminals.
Lawmakers appear to have erred in this regard, as the new divorce law allows courts to order the determination of pension-related interests for the purpose of dividing assets.
This provision appears to be in direct conflict with the Financial Institutions and Markets Act 2 of 2021, which states that pension benefits do not form part of a person’s estate.
The question now is what about marriages that are contracted in terms of custom?
Will such couples also enjoy similar protection of the new divorce regime upon dissolution of such marriages?
Furthermore, the new law protects couples in divorce proceedings by prohibiting such proceedings from being published to ensure confidentiality.
The other drawback is couples married either in or out of community of property.
In cases of out of community of property, the spouses draw up an ante-nuptial contract regulating possession of their assets.
Technically, in the new regime, the ante-nuptial contract becomes irrelevant as the court, when dissolving a marriage, will now inquire and determine assets of the marriage so that such assets will be divided in a proportional manner.
This approach adopted by the court is reasonable, as it seeks to ensure that neither party leaves the marriage empty-handed upon dissolution, irrespective of whether the marriage was concluded in or out of community of property.
Another key development is the requirement that the interests of minor children be investigated by a social worker, who must report on their welfare and custody arrangements before the marriage is dissolved.
*Lucas Tshuuya is a legal practitioner of the High Court of Namibia. contact him at tshuuya@iway.na
