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MARRIAGE
GENDER RESEARCH & ADVOCACY PROJECT

NAMIBIAN LAW ON CIVIL MARRIAGE

marriage counselling guideMarriage 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 MARRIAGE
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


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