Namibian Law on Civil Marriage
Marriage is a demonstration of love, but it is also a legally-binding agreement. Marriage is a form of contract, and it is important that couples are aware of the rights and duties that go with marriage.
When a couple plan their wedding, the last thing they want to discuss is divorce, domestic violence or death. Every couple hopes that their marriage will last forever, but this is not always the case. So couples need to know at the outset what would happen in the case of separation or divorce. Also, all marriages eventually end when one of the partners dies, and it is important to understand how death will affect the surviving spouse.
The publication Namibian Law on Civil Marriage: A question and answer package provides information on these and many more issues.
The booklet has been designed to assist marriage counselors to inform couples about the basic legal issues associated with marriage. It may also be useful to other people who work with engaged and married couples. The booklet will also be helpful to couples who are thinking about getting married.
Equality in Marriage: Married Persons Equality Act
The Married Persons Equality Act 1 of 1996 was instrumental in abolishing the unconstitutional marital powers of the husband and placing husbands and wives in Namibia on an equal footing. Men and women who are married in civil marriages in community of property must consult each other on all important financial transactions, as equal partners. To explain how the system works, GR&AP has published a detailed Guide to the Married Persons Equality Act (in English, Afrikaans, and Khoekhoegowab) as well as a shorter Summary of the Act in (English, Afrikaans, Khoekhoegowab, Oshindonga, Otjiherero, Rukwangali and Silozi).
GR&AP has also produced a number of simpler materials on this law :
- Pocket guide on the Married Persons Equality Act available in English, Oshiwambo, Afrikaans and Otjiherero
- Factsheet on the Married Persons Equality Act available in English, Oshiwambo, Afrikaans and Otjiherero
- Poster on the Married Persons Equality Act
- Comic: Gender equality in a relationship available in English, Afrikaans and Oshiwambo.
In 2005 GR&AP published a report focusing on comparative law and law reform recommendations pertaining to marital property: Marital Property in Civil and Customary Marriages: Proposals For Law Reform. This report includes recommendations on how the Married Persons Equality Act could be strengthened.
- The Married Persons Equality Act (MPEA) removes sex discrimination from civil marriages.
- Marriage equality means that in the eyes of the law a husband does not have more legal power than his wife just because he is a man.
- Husbands and wives have equal rights and duties under the law.
Legal Age for Marriage
The Married Persons Equality Act 1 of 1996 amended the Marriage Act 25 of 1961 to set the minimum age for civil marriage at 18 while remaining silent on the minimum age for customary marriage. (The age was previously 18 for boys and 15 for girls.)
The Child Care and Protection Act 3 of 2015 has made a new rule about the age of consent to marry. This law says that the minimum age for marriage is age 18 for both civil and customary marriage. However, although the age of majority has been changed to 18, there is one exception to the rule that anyone over the age of 18 has independent legal capacity: Persons under age 21 need the consent of a parent or guardian in order to marry. Persons under 18 needs parental consent AND written permission from the Minister responsible for home affairs. A forthcoming new Marriage Act is expected to prohibit marriage by persons under age 18 with no exceptions.
Child marriage occurs in Namibia, but does not appear to be widespread. If one looks at the marital status of females aged 15-19 at the time of the 2011 Census, only 3.4% were married, divorced/separated or widowed – and no girls below age 15 were married. Similarly, in the 2013 Demographic and Health Survey, again looking only at the marital status of females aged 15-19 at the time of the survey, only about 1% were married, separated or divorced and none were widowed. These figures suggest that child marriages are not common. (For more detailed information, see GR&AP’s 2017 Briefing Document on Child Marriage and Teen Pregnancy.)
Read articles from our archive:
- Apartheid laws on marriage: Sorting out the problem (2000)
- Marital property regimes and the Native Administration Proclamation (2001)
- Marital property regimes and the Native Administration Proclamation (Summary) (2001)
- Moving towards equality in marriage and inheritance (2003)
- Does love know any boundaries? (2004)
- Age of consent for marriage (written for OYO magazine) (2010)
Marriage to a Foreigner
From the queries received by the Legal Assistance Centre on a regular basis it seems that many couples are fraught with concern that their non-Namibian partners will be deported at any time should he or she not have a valid permit to reside in Namibia.
Our first port of call is the Immigration Control Act no. 7 of 1993 (“the Immigration Act”) which, among other things, regulates and controls the entry of persons into Namibia. Second call is the Namibian Constitution and here follows a more detailed article on this topic as a whole.
In conclusion, it appears that the law as a whole, from the Constitution to the Immigration Act, supports the contention that a person who marries a Namibian citizen
acquires domicile thereby and has the immediate right to live and work in Namibia without requiring any form of permit to do so.