Apartheid law to fall

The hated and devastating law that saw all marriages north of the red line being out of community of property, is finally about to be axed from Namibia's law books.

14 September 2018 | Justice

Home affairs minister Frans Kapofi is putting the final touches to a new piece of legislation that will effectively change the face of marriage in the county, especially in the northern regions.

Included is an unprecedented recommendation that couples countrywide will be able to choose their marriage regime on a schedule that will be attached to their marriage certificate.

The new law will also replace the shocking colonial/apartheid era legislation which stipulates that all marriages north of the red line are out of community of property.

This has brought unprecedented hardship, especially to women once their husbands die and relatives move in to claim assets, including land and other belongings.

The new law on marriages will be tabled in cabinet by the end of this month.

According to Kapofi, they want to give people the option to choose how they will be married - in or out of community of property.

A schedule, on which couples clearly mark their choice - will thus be attached to the marriage certificate.

“We are working on all those details to make life much easier. Time will tell how practical this is, because we still have to take this bill to parliament,” said Kapofi.

Local lawyers charge between N$1500 and N$3 500 to draft, review and register an antenuptial contract.

In community of property

In terms of this marriage contract both parties are the owners of the joint estate.

From the start of the marriage all assets and liabilities are incorporated in a single, joint estate, with certain assets being excluded.

Assets accumulated by one or both parties prior to the marriage also become part of the joint estate owned by both parties.

In this case, assets that are excluded are, for example, those inherited by one of the parties on the distinct understanding that they will not form part of the joint estate.

Consequently all property in the joint estate will belong to the husband and wife as an equal, indivisible portion - and both of them will share in the profits or losses of the joint estate.

Antenuptial without accrual

This type of marriage becomes effective when the parties enter into an antenuptial contract.

This is a contract entered into by both parties and sets out the rules and conditions in respect of the division of assets, and which will apply during the marriage.

In the case of marriages out of community of property without accrual, the property owned by a person prior to the marriage, as well as all property accumulated during the marriage, belongs only to that person.

The same rule applies to liabilities.

Each party's debt remains his or her responsibility. Consequently each party may deal arbitrarily with his or her estate in a will.

With accrual

In terms of this marriage contract the difference between the net increases in the respective estates during the duration of the marriage is divided equally between the two parties when the marriage is terminated.

The calculation of the accrual can briefly and generally be summarised as follows: It is important to determine the value of the estate at the time the marriage is contracted, for example N$1 million, and the value of the estate at termination of the marriage, for example N$1.5 million.

The amount by which the estate has increased (in this case N$500 000) is then deemed the accrual.

Under a law dating back to 1928, the Native Administration Proclamation 15, all marriages contracted in the northern communal areas of Namibia are currently out of community of property.

This system effectively creates a default marital regime for persons married north of the red line that is different from the rest of the country, which is automatically in community of property if no antenuptial contract is entered into.

The 1928 law has disadvantaged many women in the northern parts of the country, who were left with nothing after their husbands' deaths, as family members claimed assets.

Once the law is replaced, people who got married before the country gained independence will have an opportunity to change their matrimonial status to the regime they prefer.

The proposed bill also has an 'amnesty period' for couples, with the dates to be announced by the justice minister.

During this amnesty period, spouses may jointly approach a magistrate to change or clarify their marital property regime. The magistrate can issue a new marriage certificate that indicates the marital property system the couple wants.

This opportunity to change the marital property regime after the marriage has taken place will apply only to people who were affected by the Native Administration Proclamation, coordinator for the Legal Assistance Centre's gender research and advocacy project, Dianne Hubbard, said during a previous interview.

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