There have been many significant law reforms concerning gender in the years since Namibia became independent, but most of the change has been in respect of gender-based violence and public activities rather than in the more private sphere of the family.
The only gender-related law reform since independence in the area of family law is the Married Persons Equality Act 1 of 1996, which eliminates the discriminatory Roman-Dutch law concept of marital power that previously applied to civil marriages. This law requires couples married in community of property to consult each other on certain major transactions (with husbands and wives being subject to identical powers and restraints), while couples married out of community of property have the right to deal with their separate property independently. The symbolic import of this law is probably even more important than its practical provisions, as it sends out a clear message that the law will no longer recognise husbands in civil marriages as “heads of household”.
The gender-based inequalities in customary marriage, which stem from a different source, were not addressed by this law – aside from giving husbands and wives in both civil and customary marriages equal powers of guardianship in respect of children of
the marriage.
While the Married Persons Equality Act has been a positive first step, it does not sufficiently address discrimination in the family (as the UN CEDAW Committee noted in its report on Namibia).
Law reform is urgently needed in several key areas:
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Marriage:
The solemnisation of civil marriages and the appointment of marriage officers is currently governed by the Marriage Act 25 of 1961 which Namibia inherited from South Africa at independence. As of mid-2020, a new Marriage Act is under preparation by the Ministry of Home Affairs, Immigration and Safety and Security.
The forthcoming Marriage Act is expected to revise the requirements for marriage officers, introduce a new procedure for marriage permits and provides tools for addressing bad faith marriages involving foreign nationals concluded merely for purposes of acquiring domicile or citizenship.
For a summary of the current law on civil marriages, see the GR&AP publication “Namibian Law on Civil Marriage: A Question and Answer Guide”.
Read articles on civil marriage from our archive:
“Civil marriages performed by someone who is not a marriage officer” (2018)
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Marital property:
Marital property regimes are still governed by race-based rules and there are more choices for the few members of the public who can afford lawyers.
- GR&AP put forward proposals for law reform on marital property regimes in 2005.
- The Law Reform and Development Commission issued a report on “Red Line marriages” in 2003.
- The Law Reform and Development Commission issued recommendations on reform in the area of marital property in 2010.
- Read articles on marital property from our archive: “Marital property” (2017)
- Some of the concerns about marital property are addressed in a revised bill which was initially proposed by the Law Reform and Development Commission and is now under consideration by the Ministry of Home Affairs, Immigration and Safety and Security. For a GR&AP summary of this Bill as it stood in 2018 click here.
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Divorce:
Namibia’s antiquated law has narrow grounds for divorce which required that one spouse be identified as being at fault. The current law make sit expensive and difficult for spouses to get out of unhappy marriages, which can increase the risk of domestic violence.
- GR&AP put forward proposals for divorce law reform in 2000, also available in summary form .
- The Law Reform and Development Commission issued recommendations on divorce law reform in 2004.
- For a GR&AP summary of the proposals put forward by the Law Reform and Development Commission, click here.
- More recently, GR&AP issued two short factsheets on divorce law reform: “6 Reasons in favour of Easier Access to Divorce” and “6 Reasons in favour of No-Fault Divorce”
- Click here for a longer input on “Problems with Retaining Forfeiture of Benefits in a No-Fault System”.
Customary marriage and divorce:
- There is a need to provide for clear proof of the existence of customary marriage, to provide more protection for vulnerable women and children, and to remove remaining sex discrimination in this area. The Committee which monitors the Convention on All Forms of Discrimination Against Women (CEDAW) regularly criticises Namibia for lack of action on this.
- GR&AP put forward proposals for law reform on the recognition of customary marriage in 1999.
- The Law Reform and Development Commission issued recommendations on law reform in the area of customary marriage in 2004.
- For a GR&AP summary of the proposals put forward by the Law Reform and Development Commission, click here.
Read articles on customary marriage from our archives:
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Intestate inheritance:
Inheritance in the absence of a will is still governed by race-based rules and makes no provision for the maintenance of spouses or any dependents other than minor children.
- In 2005, GR&AP published The Meanings of Inheritance, a book with essays by different authors examining customary inheritance practices in different communities, and a research report entitled “Customary Law on Inheritance in Namibia: Issues and questions for consideration in developing new legislation”. GR&AP also published “Inheritance Issues”, which reported on community consultations on inheritance law reforms.
- In 2012, the Law Reform and Development Commission issued a report on succession and estates.
Read articles on inheritance from our archive:
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- Inheritance disputes and law reform possibilities (2005)
- A constitutional perspective on women’s property and inheritance rights within Namibia’s legislative framework (2005)
- Women’s land and property rights: Proposals for the reform of inheritance laws in Namibia (2005)
- The new law on inheritance: A law reform that doesn’t change much (2006)
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Birth registration:
This is another topic which is governed by an outdated law which has already been overtaken by practice.
- The current law is described in several publications produced by GR&AP:
- During 2017-2019, GR&AP worked closely with the Ministry of Home Affairs and Immigration on a bill based on an extensive public consultation process about the proposed law reforms. A series of factsheets presents some of the options for law reform which were discussed during this process.
As of mid-2020, the proposed new Civil Registration and Identification Bill was still under discussion by Government.
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Widows:
The Communal Land Reform Act 5 of 2002 aims to improve gender equality in land rights and tenure security, but law reform is needed to provide further protection to women in communal areas.
- GR&AP and the Legal Assistance Centre’s Land, Environment and Development Project (LEAD) commissioned a study in the four regions of north-central Namibia, to investigate the practical impact of the law. The findings are reported in “Protection for Women in Namibia’s Communal Land Reform Act: Is it working?” (2008).
- In 2016, GR&AP produced a comic entitled “A Land for Women: Women’s Rights to Communal Land in Namibia” available in English and Oshiwambo.
- In 2016, GR&AP also produced a series of 12 radio shows about women and communal land. The scripts are available here.
- In 2018, around the time of the Second National Land Conference, GR&AP published an article summarising law reforms which could help widows and other women improve their access to communal land.
- Another resource on women and communal land is a 2018 PowerPoint presentation entitled “Promoting Gender Equality in Land and Property Rights”
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Cohabitation:
The law currently provides little protection for cohabiting couples, even though recent national surveys indicate that 7-15% of Namibian adults are in informal cohabitation relationships. In 2010, GR&AP published research based on interviews and group discussions in Namibia, and an examination of laws on cohabitation in other countries.
- The report, A Family Affair –The Status of Cohabitation in Namibia (2010), proposes a draft bill on cohabitation for Namibia.
- An extended version of the report with more technical legal detail, aimed at legal practitioners and academics, is available to download.
- There is also a summary of the report’s key findings in an accompanying research brief which was updated in 2015.
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Stepchildren:
Stepfamilies are common in Namibia, yet no laws in Namibia govern the relationship between stepparents and stepchildren. In 2011, GR&AP researched this issue. Persons interviewed raised discrimination and abuse faced by stepchildren as major problems. Examples cited included stepchildren being subjected to an unequal and unreasonable burden of household work as compared to biological children, and being denied adequate food and other basic necessities. Participants in every region also viewed stepchildren as being disproportionately vulnerable to physical, emotional, economic and sexual abuse – such as beatings and psychological abuse based on the child’s non-biological status. In particular, sexual abuse of stepdaughters by stepfathers was cited as a widespread problem throughout the country. Our research reveals that many countries have responded to the world-wide rise in stepfamilies by developing laws that impose a range of rights and duties upon stepparents, to protect stepchildren and to give legal recognition to the relationship. Ideas are put forward for Namibia, to facilitate debate on possible law reforms to protect and promote stepfamily relationships.
- GR&AP’s research report, Stepfamilies in Namibia, explores the relationship between stepparents and stepchildren, with a particular focus on abuse, maintenance, inheritance and parental duties and responsibilities.
- The key findings of this study are summarised in a shorter research brief.
- For a thumbnail sketch, you can read the press release issued with the report.
- See also the 2001 news article “What steps to take for step-children?”
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Other family law topics:
Surrogacy: GR&AP has recently received a number of enquiries about surrogacy. The position of surrogacy in Namibia is summarized in this 2018 newspaper article.
Maintenance: Spousal and child maintenance are covered in a separate section of this website entitled Maintenance.
Children: Topics relating to children are covered in a separate section of this website entitled Children.
Family violence: See the separate sections of this website under the heading Gender-based violence and Children (which covers child protection issues)
