GENDER RESEARCH & ADVOCACY PROJECT
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 counsellors 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
The Married Persons Equality Act,
passed in 1996, was instrumental in abolishing the unconstitutional
marital powers of the husband and placing husbands and wives in Namibia
on equal footing. Men and women who are married in civil marriages in
community of property must now consult each other on all important
financial transactions, as equal partners. To explain how the new
system works, the GR&AP has published a detailed Guide to the
Married Persons Equality Act as well as a shorter Summary of the Act.
These publications are available in English, Afrikaans, Khoekhoegowab, Oshindonga, Otjiherero, Rukwangali and Silozi.
GR&AP has also produced a number of other simplified materials:
Beginning in 2001,
GR&AP and the Gender Research and Training Unit at the University
of Namibia (UNAM) worked together on research on women and property.
The broad results of the field research were published by UNAM in 2004,
while in 2005 GR&AP published a companion report focusing on
comparative law and law reform recommendations pertaining to marital
property: Marital Property in Civil and Customary Marriages: Proposals For Law Reform.
Reform on this aspect of family law is
needed in Namibia because many people in hybrid marriages that combine
both civil and customary aspects of marriage are negatively affected by
the current law. Because outdated apartheid legislation remains in
force in some parts of the country, racial discrimination continues to
play a role in marital property regimes for some couples. The laws
which apply racially-based rules are in urgent need of repeal.
The GR&AP Coordinator was subsequently
asked to serve on the Law Reform and Development Commission’s
Subcommittee on Marital Property, which used the GR&AP research as
its main resource. The subcommittee completed its work in 2007, by
deciding on detailed policy on marital property law reform, based
primarily on GR&AP’s research and recommendations. The GR&AP
Coordinator then worked together with a local attorney to draft a bill
incorporating the subcommittee’s input for further discussion. This
draft bill was finalised and presented to the full Law Reform and
Development Commission in 2009, and the Law Reform and Development
Commission is expected to present it to the Minister of justice in 2010.
Read articles from our archive (2000): Apartheid laws on marriage: Sorting out the problem; (2001): Marital property regimes and the Native Administration Proclamation; summary of this article; (2003): Moving towards equality in marriage and inheritance; (2004): Does love know any boundaries
Read an article written for the Ombetja Yehinga Organisation magazine Young Latest and Cool about the age of consent for marriage (2010)
Customary marriages are not generally recognised under
current Namibian law, although they have been granted statutory
recognition for specific purposes. In recognition of the problems this
presents for thousands of Namibians, GR&AP published a background
paper in 1999 entitled Proposals for Law Reform on the Recognition of Customary Marriages,
which explores Namibia's options in the light of other countries'
experiences. The paper was submitted to the Law Reform and Development
Commission, which released an official report with law reform
recommendations on this topic in 2005.
The Commission proposed a draft bill
entitled the Recognition of Customary Marriages Bill, in an official
government report published in November 2004. GR&AP has some
concerns about aspects of the draft bill and would seek amendments if
it goes forward as it stands.
During 2006, GR&AP prepared a simple summary of the proposed bill, entitled Recognition of Customary Marriages: A Summary of the Law Reform and Development Commission Proposals,
to facilitate feedback from the public. As soon as the bil moves
forward, GR&AP will assist with popularizing the proposals and
encouraging broad public input on the bill.
Read an article from our archive (2003): Recognition of customary marriages in South Africa: A Model for Namibia? (2005): Polygamy - To share or not to share? That is the question