‘Rather end it than kill each other’

… Churches push for amicable end to bad romance

Bishop Lucas Katenda from the Reformed Evangelical Anglican Church of Namibia says when a marriage faces irreconcilable differences, a peaceful divorce is better than resorting to violence or murder.

Katenda has spoken on the recently tabled divorce bill, which is aimed at simplifying the divorce process and providing relief and protection for those in desperate situations, including victims of domestic abuse and couples of which the marriage has irreparably broken down.

“Marriages are sacred in their foundational nature, but they are also human institutions. Most humans fail and when such failure appears, it must be recognised and dealt with. When irreconcilable differences are noticed, it is better to end in peace rather than killing each other,” he says.

Katenda says the divorce bill would help end marriages before they end in fatalities.

“It is the lesser of the two evils in many ways,” he says.

A social worker, who is speaking on condition of anonymity, says the financial and procedural barriers to divorce can indeed trap individuals in abusive and dangerous relationships.

“Staying in an abusive marriage due to financial constraints or procedural delays can put individuals at significant risk of serious harm or even suicidal behaviour,” she says.

Sheikh Abdul Malik Shikongo, representing the Muslim community, says Muslim leaders are yet to meet and discuss the divorce bill.

“Divorce is allowed in Islam in terms of the Qur’an, but one must always carefully consider all factors and allow for the possibility of reconciliation,” he says.

Mutjinde Katjiua, the paramount chief of one faction of the Ovaherero Traditional Authority (OTA), is against the divorce bill, saying marriage in African cultures involves a union between families and not just two individuals.

The notion of speeding divorce up may just negate the value of marriage and destroy the family as the basic unit of society and further diminish the role played by members of the extended families and peer groups to salvage the marriage,” he says.

Katjiua says the law should ideally make provision for the parties in a divorce to choose whether they want to follow the statutory law or customary law in the divorce proceedings.

Whoever is the cause of a divorce must pay the other party 12 cows as a penalty in the Ovaherero culture, he says.

“The separation/division of assets are dealt with depending on the situation at hand but applying the principle of equal sharing of assets, while Onganda (the traditional home with its holy fire) is vested in the patriarch.”

Katjiua says obligations such as spousal maintenance merely serve to nurture bitterness and constant conflict.

“Why should one maintain a grown-up whom you are no longer together with? And would this maintenance cease when the party remarries?” he asks.

He, however, says child maintenance has always been an absolute must on the part of both parents.

REDUCE DELAYS

Minister of justice Yvonne Dausab said there is no need for the parliament to delay her proposed divorce bill until the definition of ‘spouses’ is clarified as per Swapo backbencher Tjekero Tweya’s suggestion.

“We cannot entertain this bill until the definitions are made into law. The difficulty is the bill says the spouse must be maintained, but does not clearly say who the spouse is. Who is this spouse?” Tweya asked last week.

However, during Dausab’s Cabinet committee briefing last week, she said the definition of spouse was not intended to be part of divorce legislation, as it is already stipulated in the Marriage Act of 1961.

She said minister of home affairs, immigration, safety and security Albert Kawana is expected to table a marriage amendment bill in the National Assembly.

“We currently have the Marriage Act of 1961 that is still applicable. The definition of spouse that is given in that legislation has not changed. The common law definition of spouse and how we understand it in terms of that piece of legislation has not changed,” Dausab said.

She said she does not agree that the definition of ‘spouse’ should be part of the divorce bill, because divorce is a consequence of marriage and once marriage and spouse has been defined in the Marriage Act, that should cover it.

“That particular piece of legislation will probably be tabled in the next two weeks or so,” Dausab said.

Namibia’s current divorce law is an outdated system inherited from South Africa and relies on assigning fault, necessitating one spouse to demonstrate the wrongdoing of the other.

Currently, the four grounds for divorce consist of adultery, habitual criminality, mental disability, or malicious desertion for prolonged periods.
The divorce bill promotes a divorce system aimed at reconciliation and reducing trauma experienced by the parties to the divorce proceedings and the children of the marriage.

It further provides for incidents where public proceedings would be restricted and privacy considerations would guide proceedings. It also abolishes the common law grounds for divorce, together with the grounds applied under previous legislation.

“The issue of the dissolution of marriages has been a difficult conversation as far as the Ministry of Justice is concerned for over 20 years. “A lot of consultation has gone into it. In the lawmaking process, not every concern and issue that is being raised can be accommodated, but we have made every effort to accommodate as much in the final text of the bill,” Dausab said.