The latest version of the Divorce Bill was recently released for public comment. Much of the bill is a very welcome change to Namibia’s outdated fault-based divorce law.
The current outdated law requires a guilty spouse and an innocent spouse, and requires a personal appearance in the High Court. This means that divorce is currently so expensive and impractical that some married couples simply separate without formally divorcing, which can wreak havoc, especially with inheritance issues when one spouse dies.
The bill would provide for only one ground for divorce: irremediable rupture. If either or both spouses allege that the marriage is no longer saved, the court will have to issue a divorce order – although the court may impose a short waiting period to allow for possible reconciliation, if one of the spouses believes that the marriage can still be saved. .
Another positive innovation, the bill would allow spouses to jointly file for divorce if they agree that the marriage has broken down. It also encourages mediation and settlement agreements, in an attempt to reduce conflict.
The bill contains safeguards to ensure that post-divorce arrangements protect the best interests of any minor children of the marriage. Even if the parties agree on arrangements for the children, the court must still verify that the best interests of the children are well served.
A welcome provision would give courts the power to make orders about access to children of the marriage by members of the spouses’ extended family – to ensure that acrimony between divorced spouses does not deprive children of the opportunity to maintain ties with other family members.
The bill also paves the way for greater accessibility of divorces, by providing that certain designated regional magistrates’ courts will hear divorce cases in the future. This would go a long way to ensuring that it’s not just the wealthy who can afford a divorce.
So what are you worried about in the bill?
Of greatest concern is a recent draft amendment that would preserve the fault-based notion of “forfeiture of property benefits”. To understand how it works, a bit of background explanation is needed.
In a marriage in community of property, the norm is to divide the property in two upon divorce. Both spouses will generally have contributed unequal amounts of income and property to the marriage, so in the 50-50 split, one spouse will generally “benefit” from the other spouse’s contributions. Current law allows the spouse who received the “benefit” to “lose” part or all of that benefit if that spouse has engaged in a wrongdoing, such as adultery or domestic violence.
So what’s wrong with that?
On the one hand, this system tends to disadvantage women. It is a practical reality that wives in our society tend to earn less than husbands, often because they take on a greater role in the unpaid labor of household chores and raising children. Where the husband earns more, only the wife will have “benefits” to lose; for example, if the wife of an adulterous husband has made less financial contributions to the marriage than the husband, his behavior will not be financially punished as he derives no benefit from the wife that can be confiscated.
This discrepancy led a South African court (and several commentators) to speculate that the “forfeiture of property benefits” law might be unconstitutional.
The South African Law Reform Commission recently discussed the possibility of removing this principle from South African divorce law for the same reason.
The other problem is that encouraging the parties to argue over “fault” for the breakdown of the marriage as part of the division of property only pushes the fault back through the back door – and thus undermines the idea of move towards less contentious divorces which can be concluded inexpensively, quickly and amicably.
Acrimony between divorced spouses is also likely to be detrimental to the children of the marriage, who are inevitably caught in the middle, and it can discourage out-of-court settlements.
Is it even possible for a court to assess spousal misconduct?
The Namibian Supreme Court cited with approval a statement from a South African case on the complexity of assigning fault for the breakdown of a marriage, saying that “it is now widely recognized that the causes of failure of a marriage are much more complex. Quite often adultery is the result and not the cause of an unhappy marital relationship. “Conversely, a marriage in which the spouses live in harmony has little chance of being broken up by a third party.”
In any event, other provisions of the Divorce Bill give courts the discretion to adjust the standard division of property to achieve an equitable result after considering a list of specified factors, including the matrimonial regime under background, the duration of the marriage, the direct and indirect consequences the contributions of each spouse (including household chores and childcare), their respective financial situations, which spouse will have custody of the children of the marriage and whether one spouses will pay spousal or child support.
These types of factors seem to provide a reasonable basis for adjusting the division of property and are much less likely to lead to conflict than to rehash the issues that led to the divorce.
Another concern in the current draft relates to settlement agreements between the divorcing parties. The current draft would require parties to seek legal advice on a private agreement, even if they did not seek to make their agreement a court order.
This would require the involvement of lawyers even in cases where there are no children and few assets to share, and even where the agreement is the result of mediation with a trained facilitator.
One of the goals of law reform is to make divorce affordable for everyone and open the door to do-it-yourself divorces that don’t require the use of lawyers.
The previous draft gave the court the duty to consider some basic criteria to test the fairness of any agreement between the parties, without requiring the intervention of legal practitioners. While it is probably useful for divorced spouses to consult lawyers if they can afford it, to require it in all cases where the parties wish to settle their differences would lead to unnecessary additional expense and disadvantage members of the public with limited goods.
A third problem to note is the lack of mention of children’s right to participation in the bill.
Namibia is a party to the Convention on the Rights of the Child, which guarantees in Article 12 that every child capable of forming an opinion has the right to be heard “in all judicial and administrative proceedings concerning the child”. – and that the views of the child should be duly taken into consideration taking into account the age and maturity of the child.
This principle has been detailed in the Child Care and Protection Act, but it needs to be incorporated into divorce proceedings, which deeply affect children.
The Divorce Bill has many positive features, and with a few more changes, it could become a model of fairness and practicality. We welcome this long overdue legislative reform and hope that the few remaining wrinkles in the draft can be ironed out before the bill is tabled in Parliament.
– This article has been made possible with support from the European Union.