Traditional leaders weigh in on divorce law

Traditional leaders say some of the principles introduced under Namibia’s new no-fault divorce law have existed in customary marriage systems for generations, while raising questions about how the legislation will interact with customary practices. Their comments follow the implementation of the Dissolution of Marriages Act 2024, which replaced Namibia’s fault-based divorce system with a no-fault regime based on the irretrievable breakdown of a marriage. The law came into operation on 3 June. Ondonga Traditional Authority spokesperson Frans Enkali says customary authorities traditionally did not focus on determining who was to blame when a marriage ended. “The practice was that they were not also interested in the details of a divorce, which was a good thing because it also protected people rather than shaming the persons involved,” he says. His remarks mirror one of the central aims of the new law, which seeks to move away from fault-finding and adversarial divorce proceedings. According to guidance issued by judge president Petrus Damaseb, the new divorce framework focuses on whether a marriage has broken down irretrievably rather than identifying a spouse’s wrongdoing. Enkali says customary divorce systems have also long distinguished between assets acquired jointly during a marriage and property inherited through family lineages. “They said, show what was put together,” he says. He points to inherited cattle as an example. “Let’s look at cattle, for example. There are cattle that somebody inherited from the lineage. How can that person share those cattle with somebody who is not part of that lineage?” he asks. Enkali says some customary communities already use agreements resembling antenuptial contracts. “They do sign prenups. They do,” he says. While he welcomes aspects of the new law, Enkali says customary practices should not be overlooked. “The reality is there. We were there before there were these Roman-Dutch laws,” he says. Damara Chief’s Council spokesperson Abner Xoagub says customary communities have long-established methods for distributing property when marriages end. “There will be a traditional custom where maybe they will say these are mine and those are yours. Certain calculated formulas are there that people follow customarily,” he says. Xoagub says many rural communities are likely to continue relying on customary approaches to resolve disputes involving family assets and livestock. “I think that in many cases people will still follow the customary rules,” he says. The new divorce law allows courts to consider a range of factors when determining the division of assets, including financial contributions, caregiving responsibilities, domestic work and the economic circumstances of the parties. It also introduces mediation and seeks to reduce hostility between divorcing spouses. However, traditional leaders say questions remain about how the reforms will affect customary marriages and longstanding customary systems governing the distribution of family property. The post Traditional leaders weigh in on divorce law appeared first on The Namibian .