The Legal Assistance Centre is pleased to announce the release of the report A Family Affair –The Status of Cohabitation in Namibia, which has been handed over to the Law Reform and Development Commission in hope that it will provide the basis for law reform on this topic.
The law currently provides little protection for cohabiting couples in Namibia. However cohabitation is common as recent national surveys indicate that 7-15% of Namibian adults are in cohabitation relationships. This is likely to be an under-estimate of the true figures as many people may not report that they are cohabiting due to the stigma that may be attached to these relationships. Even though cohabiting relationships are common in Namibia, few people are aware of the limited protections available under the law.
Although there are a few existing legal mechanisms that can be invoked by cohabiting couples, the current laws are not designed to cater for cohabiting couples and are inadequate to produce fair outcomes in most cohabitation situations. Furthermore, the current laws are inconsistent, with some statutes including cohabiting partners in their definitions of “dependent” (such as the Government Service Pension Act) while other statutes currently exclude cohabitants (such as the Motor Vehicle Accidents Fund Act).
The purpose of the report A Family Affair –The Status of Cohabitation in Namibia was to assess the status of cohabitation in Namibia, to gauge public opinion on the need for law reform and to make recommendations for legislative change.
Data was collected through 61 individual interviews with cohabitants and key informants and 10 focus group discussions. The data was collected in 2002 and in 2009, with the second round of field research being conducted in cooperation with the Law Reform and Development Commission. The report also assesses international practice and gives examples of how different laws across the world address the issue of cohabitation.
The research assessed public opinion on the need for law reforms. A strong majority of persons consulted were in favour of improved legal protection for cohabitating partners. Participants felt particularly strongly that there should be some mechanism for fair division of property, with more mixed opinions on duties of maintenance after a cohabitation relationship ends.
The need for legal protections is supported by the Namibian Constitution which protects the family, prohibits discrimination on the basis of sex and social status, and provides for the right to dignity. Court cases in Namibia and South Africa show that all these rights are relevant to cohabitation. International law also recognises and protects the myriad varieties of families that exist in practice, including families in the form of unmarried cohabitating couples. Comments and recommendations interpreting the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, have explicitly stated that the protections for the family in these conventions apply to cohabitation relationships.
The report concludes with a draft bill on cohabitation that is based on a two-step approach:
- a basic level or automatic protection for cohabiting couples who satisfy certain criteria; and
- optional registration of the relationship which can be accompanied by a cohabitation agreement between the parties if they choose.
Hard copies of the report can be obtained from the Legal Assistance Centre for N$50 for individuals. One free copy will be provided per interested government ministries and non-governmental organisations.
An extended version of the report is available to dowload or on CD. The extended version contains more technical legal detail and is targeted at legal practitioners and academics.