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THE government plans to make getting divorced cheaper and easier with its new proposed divorce law.
Minister of justice Yvonne Dausab said this at a consultation meeting in Windhoek yesterday.
She also said the cost of divorce has for long prevented many Namibians from getting divorced.
“The biggest challenge we have generally is the fact that many of our [legal] fees are prohibitive,” she says.
Dausab, however, says lawyers should be paid for the services they render.
The minister says it costs N$6 000 to open a file with a lawyer, and after all legal actions this could amount to between N$15 000 and N$25 000.
“[But] what that does is that many people are unable to afford legal representation,” she says.
Dausab says some Namibians are still paying off legal fees up to two years after their divorce has been finalised.
“Not because it was exorbitant, but because many people don't have the funds to sustain the legal costs,” she says.
To mitigate this, acting executive director of justice Felecity !Owoses says the bill would make it possible for people to represent themselves without having legal knowledge.
“Although do-it-yourself divorces are allowed due to the complexity of some cases and a lack of knowledge, it may not always be possible for the poor and vulnerable to make use of this,” she says.
!Owoses says this would reduce the financial burden on the poor and vulnerable.
“The parties instituting divorce are often poor and vulnerable and unable to pay the fees. Although the director of Legal Aid assists the poor by assigning legal practitioners, it does not always have the means to do so, and the coverage of prospective clients is limited due to the Legal Aid Act regulations,” she says.
Thus the proposed clause 3, which deals with instituting divorce proceedings, will state that a party to a marriage or the parties can jointly institute divorce proceedings with or without the assistance of a legal practitioner.
MAGISTRATE'S COURT EMPOWERED
Part of the costs during the divorce process is travelling to Windhoek or Oshakati, where the two high courts are.
Currently, access to divorce courts is limited to the High Court.
!Owoses says this makes courts inaccessible to the larger population.
“It also congests the High Court roll, leading to lengthy divorce proceedings,” she says.
The Namibian previously reported that the courts are finding it increasingly difficult to cope with the escalating number of divorce cases.
In 2018 alone, the Windhoek and northern division courts handled 1 442 divorce cases.
While 1 297 were finalised during that year, 45 divorce cases were withdrawn.
The following year, another 1 422 cases were filed, but only 862 were finalised.
A Cabinet directive of 6 September 2019, seen by The Namibian, endorses the recommendations of a study regarding Namibia's current fault-based grounds for divorce.
To change this, !Owoses says the bill empowers magistrates' courts to deal with divorces and amends the Magistrate's Court Act.
NEW DIVORCE GROUND
Moreover, there are currently only four grounds for divorce, namely adultery, malicious desertion, mental illness and habitual crime.
“These grounds, with the exception of mental illness, are based on the principle of fault, meaning the person instituting a divorce action must state and prove the facts, establishing at least one of the four grounds. The other party can accept or deny these facts,” !Owoses says.
Therefore, the court will only grant a divorce order if it is satisfied that the party which instituted the divorce action has proven one of these four grounds.
The new proposal would state that the only ground for divorce is the irretrievable breakdown of the marriage.
“It is common knowledge that marriages break down on grounds other than those required by the current law.
“For example, domestic violence, rape or other sexual offences, or the two parties simply agreeing to divorce because they believe their marriage has irretrievably broken down,” !Owoses says.
Furthermore, the policy document on the bill states that it puts emphasis on children's best interests.
The bill makes provision for the private hearing of divorce proceedings or annulment of a marriage where there is a likelihood that the hearing of any evidence may bring harm to a child of the marriage.
“Certain information can be published as set out in this clause. A contravention of the provisions of this clause attracts penalties of N$100 000 or imprisonment for a period of five years, or both such fine and such imprisonment,” the document reads.
BURDEN OF DIVORCE
Earlier this year, The Namibian reported that the former chairperson of Namibia Wildlife Resorts, Jackie Wilson-Asheeke, paid N$55 000 after starting divorce proceedings in September 2018, and the process was only finalised in January 2021.
Wilson-Asheeke last year said divorcing her husband of 33 years only brought her more headaches and heartache.
She said it took failed mediation, endless court dates and agonising encounters with lawyers who charged inexplicable fees to get a divorce that both parties wanted.
Journalist at The Namibian