The (almost) new kid on the block: Introducing the Namibian Marriages Act, 2024

On 2 October 2024, the President of Namibia signed into law the new Marriages Act, 2024, which repeals the Marriage Act, 1961, the Marriages, Births and Deaths Amendment Act, 1987, and portions of the Married Persons Equality Act, 1996 and the Child Care and Protection Act, 2015. The Marriages Act, 2024, comes into operation on a date determined by the Minister by notice in the Government Gazette.

Definitions under the Marriage Act, 2024

Under the Marriage Act, 1961, a marriage was broadly defined. The Act did not confine a marriage to opposite-sex only. It laid down procedural requirements for marriages, such as the designation of marriage officers, the requirement for public notices, and objections to marriages. The Marriage Act, 1961, permitted marriages involving minors under the age of 21 with parental or guardian consent.

The Marriage Act, 2024, in contrast, introduces rigid definitions that reshape the legal framework:

"Marriage" is defined as a “legal union entered into voluntarily between two persons of the opposite sex and of full age; and solemnised or validated in terms of this Act or the repealed law; or recognised in terms of the Recognition of Certain Marriages Act, 1991”.

"Spouse" is defined as “a person, whether male or female, who is married to a person of the opposite sex and includes such person who is a party to a foreign marriage”.

A "foreign marriage", in turns, refers to a marriage which “is entered into outside of Namibia voluntarily between persons of the opposite sex who ae 18 years or older” and complies with the further requirements set out in section 31.

Pre-Marriage Confirmation Process

One of the most notable procedural departures from the Marriage Act, 1961, is the introduction of an onerous pre-marriage process. The Marriage Act, 2024, contemplates a set of requirements which intending spouses have to fully meet before they can say their “I do’s”. This procedure will entail the following:

Notification of Intention to Marry (Section 12)

Intending spouses are required to jointly submit a notification to the Registrar-General, a statutory functionary, of their intention to marry at least 90 days before their planned marriage date, through a registrar in the region where either spouse resides or where the marriage is to be solemnised. The notification must include several key documents, such as proof of identity, consent required due to the age of the intending spouses (if applicable), proof of the dissolution of previous marriages (if applicable), and a sworn declaration from each spouse confirming that they are not currently married or involved in a foreign marriage and that there are no legal impediments to the marriage. Additional information, such as the intended marriage date, location, the name of the marriage officer, and details of any subsisting customary marriages, must also be provided. The registrar, who is defined as a staff member of the Ministry designated as a registrar in terms of section 3 of the Civil Registration and Identification Act, is required to transmit such documentation as soon as practically possible to the Registrar-General, who is defined as the staff member of the Ministry designated as Registrar-General in terms of section 3 of the Civil Registration and Identification Act, for review.

Special conditions for foreign nationals (Section 13)

A Foreign national (who is not a permanent resident of Namibia) who intends to marry a Namibian citizen, or a permanent resident of Namibia, must submit additional documentation. This includes evidence of “no outstanding arrest warrants” or “Interpol notice”, a certificate of marital status from the foreign national's home country, and proof of legal residency in Namibia (such as a valid visa or permit). If the documents are not in English, certified translations must be provided. Once the required documents are submitted, the registrar must, within seven days, transmit the documentation to the Registrar-General for review.

Verification and public notice (Section 14)

Once the notification of the intended marriage is received by the registrar, the registrar must ensure notice is placed on the online notice board of the Ministry, physically posted in public places, and made known to the public through other platforms or locations as prescribed by the Minister. The notice must include specific details, such as the full names, surnames, and birthdates of the intending spouses, the date and location of the intended marriage, the name of the marriage officer, contact details for submitting objections, the prescribed period during which objections can be made, and any other relevant information as prescribed. The public notice must be displayed for a minimum of 21 days, during which time any person may object, citing legal reasons, such as the existence of a legal impediment.

Pre-marriage confirmation issuance (Section 16)

The Registrar-General (in the case of a foreign national or where an objection was received) or the registrar of a particular region (in any other case) will confirm that the marriage complies with all legal requirements and will issue a pre-marriage confirmation.

Expiry of pre-marriage confirmation (Section 19)

A pre-marriage confirmation issued under the Marriage Act, 2024, is valid for 90 days from the date of issue. It may be renewed for one additional 90-day period upon application, provided good cause is shown for the extension. No further extensions are allowed. Once the confirmation expires, a marriage officer is prohibited from solemnising the marriage.

Cancellation of pre-Marriage confirmation (Section 20)

If, after the issue of the pre-marriage confirmation, a legal impediment is discovered, the confirmation may be cancelled. The intending spouses will be notified of the cancellation, and the marriage cannot proceed until the relevant issue is resolved.

Marriage of Minors and Consent Requirement

The Marriage Act, 1961, provided that no marriage officer could solemnise a marriage where one or both parties are under the age of 21 years unless legally required consent had been granted in writing. In instances where parental or guardian consent was unobtainable, a commissioner of child welfare was empowered to grant written consent, provided the marriage was in the minor's best interests.

The Marriage Act, 2024 now completely prohibits marriages involving minors below 18 years. Furthermore, individuals aged 18 to 21 require written parental or guardian consent. If such consent is denied, a children’s commissioner may override the refusal only if it is deemed to be against the minor’s best interests. This marks a shift from the discretionary allowances under the Marriage Act, 1961, to a stricter framework in the Marriage Act, 2024.

Implications for Namibians, same-sex couples, and foreign nationals

The Marriage Act, 1961, did not explicitly regulate the recognition of foreign marriages. However, the 2023 landmark ruling in Digashu v Government of Namibia by the Supreme Court in Namibia recognised the constitutional rights of same-sex couples to have their foreign marriages recognised for immigration purposes.

The Marriage Act, 2024, brings significant legal changes for Namibians, same-sex couples, and foreign nationals.

The Marriage Act, 2024, specifically excludes same-sex couples from legal recognition, regardless of whether such marriage was solemnised in Namibia or in a foreign country (even if such a foreign country permits same-sex marriages). A further implication is that, for purposes of considering the sex of a spouse, the Marriages Act, 2024, only recognises the sex, which was so assumed to such spouse at birth, accordingly, excluding the recognition of any transgender spouse other than in respect of the sex assigned at birth to such spouse.

For foreign nationals, the Marriage Act, 2024 introduces a more stringent process, requiring them to submit additional documentation, such as proof of legal residency and marital status, especially in cases involving foreign marriages.

Constitutionality

The Marriage Act, 2024, raises important constitutional issues, particularly in relation to Articles 8 (Respect for Human Dignity), Article 10 (Equality and Freedom from Discrimination), and Article 14 (Family) of the Namibian Constitution,1990. The right to equality is a fundamental right embedded in the Constitution. Article 10 stipulates that all persons are equal before the law and prohibits discrimination based on sex. Article 22 further provides that “whenever or wherever in terms of this Constitution the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorised, any law providing for such limitation shall: (a) be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual; (b) specify the ascertainable extent of such limitation and identify the Article or Articles hereof on which authority to enact such limitation is claimed to rest.” These provisions serve as constitutional safeguards against arbitrary or targeted legislative exclusions.

Accordingly, the definition of marriage under the Marriage Act, 2024, as being solely between a man and a woman, could be considered discriminatory, particularly as it excludes individuals based on sex, gender identity, and sexual orientation. It is unclear on what constitutional basis this exclusion rests, nor does the Act specify the justification for limiting a fundamental right in line with Article 22. Even if a justification were advanced, the limitation arguably negates the essential content of the right to equality and is not of general application but rather aimed at excluding an identifiable class. As such, the provision risks falling foul of both Article 10 and Article 22, amounting to a constitutionally impermissible form of discrimination.

Further, Article 8 guarantees the right to human dignity, which could be argued to be infringed by the exclusion of same-sex marriages from recognition, potentially undermining their dignity by denying them the same legal rights as opposite-sex couples. This interpretation would also align with the ruling of the Supreme Court in the Digashu case, which made the ruling that the appellants were spouses for the purposes of the Immigration Control Act, 1993, given their marriages were validly concluded marriages abroad.

Finally, Article 14 of the Namibian Constitution, which guarantees the right to marry and to found a family, may be infringed by the procedural barriers introduced in the Marriage Act, 2024—particularly the 90-day notification period and the requirement for pre-marriage confirmation. Article 14(1) explicitly provides that “men and women of full age shall have the right to marry and to found a family,” establishing marriage as a fundamental right. Article 14(2) further underscores that “marriage shall be entered into only with the free and full consent of the intending spouses,” thereby placing the essence of lawful marriage in the hands of the parties themselves, not the state.

Crucially, the Constitution makes no mention of prior administrative approval as a condition for the exercise of this right. Yet, the Marriage Act, 2024 conditions the validity of marriage on the prior issuance of a pre-marriage confirmation by either the Registrar-General or a registrar, which introduces a state-controlled gatekeeping mechanism. This requirement could be interpreted as undermining the autonomy and agency of consenting adults by subordinating their constitutional right to marry to bureaucratic discretion. It effectively delays or potentially denies access to marriage, which may amount to an unjustifiable limitation on a right that is neither qualified nor expressed to be subject to statutory procedures in the Constitution.

The Marriage Act, 2024, marks a fundamental shift in Namibia’s marital laws, replacing the relatively permissive framework of the Marriage Act, 1961, with rigid administrative and definitional constraints. Accordingly, unless the Marriages Act, 2024, is constitutionally challenged, once brought into force, its provisions will therefore have far-reaching consequences for both Namibians and foreigners, opposite-sex couples and same-sex couples; and, lastly, cisgender and transgender persons.

*Reviewed by Hartmut Ruppel, Executive and Country Head of ENS | Namibia

Stefanie Busch

Executive | Namibia

sbusch@ENSafrica.com

Lelan Beukes

Candidate Legal Practitioner | Namibia

lebeukes@ENSafrica.com