Navigating Namibia’s new Divorce Act: What you need to know

On 24 October 2024, Namibia introduced the Dissolution of Marriages Act 10 of 2024 (commonly referred to as the Divorce Act), marking a significant overhaul of the country’s divorce laws. This new legislation streamlines the divorce process, prioritises the welfare of children, and provides clear guidelines for asset division and maintenance arrangements. Below is an overview of the key changes.

Why the new Divorce Act matters

Before the new Act, divorce in Namibia was governed by older laws that were often complex and could lead to unfair outcomes. Many found it challenging to navigate the system, especially when faced with emotional and financial hardships. The new Act consolidates and modernises these laws, ensuring that divorces are more efficient, fair, and with a greater focus on the well-being of children and vulnerable parties.

The only ground for divorce: Irretrievable breakdown of marriage

The Act replaces all previous grounds for divorce, such as adultery or desertion, with a single ground: the irretrievable breakdown of the marriage. This means that the court only needs to be convinced that the marriage cannot be restored. This change simplifies the divorce process, as couples no longer need to prove fault or wrongdoing. Instead, the focus is on whether the relationship has broken down to the point where reconciliation is no longer possible.

Filing for divorce: Jointly or individually

The Act allows either one or both parties to file for divorce.

Jointly: If both spouses agree that the marriage has broken down, they can file together, streamlining the process.
Individually: If one party believes the marriage has failed, they can file alone. If the other spouse does not contest the claim, the court may grant the divorce quickly.

However, if one spouse denies that the marriage has irretrievably broken down, the court may investigate whether reconciliation is possible. If necessary, the court can postpone the divorce for up to three months to allow the couple to attempt reconciliation. Importantly, cases involving domestic violence or child welfare concerns are treated with caution, and reconciliation may not be encouraged in such situations.

Mediation: Encouraging peaceful resolutions

Mediation in divorce matters is already a requirement in terms of the Rules of Court so this is not a new addition. The Act strongly encourages couples to resolve disputes, such as dividing assets or determining child custody, through mediation before going to court.

Child custody and maintenance: Putting children first

Children’s welfare is a top priority under the new Act. The court cannot grant a divorce unless it is satisfied that appropriate arrangements have been made for custody and guardianship, and child maintenance.

Decisions about who will care for the children are based on the children’s best interests. The Act allows for joint custody if both parents are fit to care for the child and can cooperate effectively. Factors such as emotional support, the parents’ ability to communicate, and their proximity to each other are considered.

Both parents are legally responsible for supporting their children financially. Maintenance orders can require one parent to pay periodic amounts or a lump sum to cover the children’s needs. The court ensures that maintenance arrangements are fair and adequate before finalising the divorce. In some cases, the court may require reports from social workers to assess the suitability of proposed arrangements for children.

Spousal maintenance: Addressing financial inequality

The Act introduces provisions for spousal maintenance, recognising that the end of a marriage can leave one spouse at a financial disadvantage. Spousal maintenance may be ordered to alleviate economic hardship caused by the divorce, and help the disadvantaged spouse become financially independent over time. The court will consider various factors when determining spousal maintenance, such as the length of the marriage, each spouse’s financial circumstances, and contributions (financial or non-financial) made during the marriage. Interim maintenance may also be granted while divorce proceedings are ongoing.

Dividing assets: Ensuring fair outcomes

The Act requires courts to consider several factors, including:

The marital property regime (e.g., community of property or ante-nuptial agreements).
Contributions (financial and non-financial) made by each spouse, such as income or homemaking duties.
The duration of the marriage and the financial needs of each party.

When granting a divorce, the court may also make an order of forfeiture of patrimonial benefits against one party if it is satisfied that the party against whom the order is sought will, will derive an undue benefit if the order is not made.

Protecting privacy in divorce proceedings

The Act includes measures to protect the privacy of those involved. Courts may order that proceedings be held behind closed doors to shield children or other vulnerable individuals from harm. Additionally, it is illegal to publish information that reveals the identities of children or parties involved in divorce cases. Violations can result in hefty fines or imprisonment, to ensure that sensitive details remain confidential.

Simplifying court processes and expanding access

Previously, divorce cases were heard only in the High Court. The new Act allows regional magistrates’ courts to handle divorce proceedings, making the process more accessible and affordable for many families. However, certain matters, such as the annulment of marriages or the recognition of foreign divorces, remain within the jurisdiction of the High Court.

Outdated laws repealed

The Act repeals several older laws that were inconsistent or no longer applicable. For example, the practice of ordering “restitution of conjugal rights” (forcing one spouse to return to the other before a divorce could be finalised) has been abolished. This ensures that the law aligns with modern values and practices.

Conclusion

It is important to note that the Act is not yet in force. It will be brought into force on a date yet to be announced by the Minister in the Government Gazette. The rules of the court will first need to be amended to make provision for the procedures envisaged under the new regime.

Ultimately, the Divorce Act represents a positive step forward for Namibia, ensuring that divorces are handled with dignity, fairness, and a focus on the welfare of all parties involved. By simplifying the law and prioritising mediation and children’s needs, the Act provides a modern, compassionate approach to navigating the end of a marriage.

Vanessa Boesak

Executive | Namibia

vboesak@ENSafrica.com