Nam divorce law 'outdated'
28 June 2013 | Justice
A more fertile ground for violence in the family is hardly imaginable
Judge President Petrus Damaseb has described Namibia's divorce law as outdated and urgently in need of reform.
While delivering a judgement in a divorce case this week, Damaseb said the Namibian divorce law potentially goes against Article 8 of the Namibian constitution dealing with respect for human dignity.
He said the divorce law seems to violate a person's dignity by requiring him or her to remain married, with all the obligations that go with marriage, where such a person clearly does not intend to continue with the marital relationship.
"The divorce law of Namibia is archaic and demonstrably in need of urgent reform," Damaseb said.
He ordered the Registrar of the High Court to provide a copy of the judgment to minister of justice, attorney-general, minister of gender equality and child welfare and the chairman of the Law Reform Commission.
In the matter before the court, the High Court granted an order for restitution of conjugal rights to a husband who had committed adultery. This means that the court ordered the wife to return to the husband who had deserted her for another woman.
The wife has to return to or receive her husband on or before August 5, 2013.
"Namibian divorce law, which requires an innocent deserted spouse to accept back the deserter ... regardless of whether or not the innocent party has lost love and affection for the deserters, or has no interest in being further married to the deserter in light of the desertion, is an anachronism and in need of urgent reform," Damaseb said in his ruling.
"The government of the day has inexplicably failed to initiate the much-needed reform," he said.
"Under our current divorce law, when it comes to considering dissolution of a marriage, it matters not that the spouses do not love each other or that the marriage has irretrievably broken down. A court may only grant divorce upon proof that a spouse committed a matrimonial offence.
"Except in case of adultery, where a party relies for divorce on the malicious desertion of the other spouse, the wish of the one seeking divorce is defeated if the guilty spouse offers to return.
"It matters not that because of the desertion of the guilty spouse the innocent party no longer loves the deserter," he said.
"If she refuses to take him back, she becomes the deserter and may be sued for divorce. In the event she may even lose the right to maintenance if the original deserter chooses to divorce her.
"This is a ludicrous state of affairs for a country which, quite justifiably, abhors abuse and violence in the family by especially men," the Judge President said.
He further said that there is not a single modern constitutional democracy where the fault-based principle of divorce has not been abandoned in favour of 'irretrievable breakdown' or some other flexible criteria such as the parties having lived apart for a certain period of time.
Damaseb said the state of Namibia's law is such that even if a court is satisfied that a marriage between two people has no hope ever of being salvaged, the court must keep them together as long as one spouse wants to remain married.
"A more fertile ground for violence in the family is hardly imaginable," he observed.