The Marriage Bill

What’s Positive and What’s Problematic

The Marriage Bill tabled in parliament on 2 July has been in the making for many years as a replacement for the 1961 Marriage Act, although some definitions have been recently added. Here is an overview of its key points.

The positive parts

(1) Tighter control over marriage officers to prevent abuse: Under the bill, magistrates, civil servants and actively serving religious leaders can serve as marriage officers.

The bill provides for training and testing requirements for all marriage officers who are not magistrates; anyone’s authority to act as a marriage officer can be revoked on grounds of misconduct.

Fees for conducting marriages will be prescribed and it will be a criminal offence for a marriage officer to accept unauthorised fees, gifts or rewards.

Marriage officers who knowingly abuse their positions can also be charged with a range of offences. 

(2) Advance notice of intention to marry: Couples intending to marry must approach an office of the Ministry of Home Affairs at least 90 days in advance.

This gives officials time to confirm that neither party is currently in a civil marriage, thus preventing bigamy.

It also allows officials time to confirm that the parties are old enough to give independent consent to marry, or else have obtained the necessary parental consent.

Notice of the intended marriage will be made public, to allow anyone with knowledge of a legal impediment to lodge an objection – coupled with a criminal offence aimed at anyone who provides false information in an attempt to stop the marriage.  

The couple will also choose their matrimonial property regime at this stage – giving them time to make sure they understand the financial consequences of the marriage.

(3) A fair procedure to address marriages to non-Namibian citizens that are not in good faith: It is well known that foreign nationals sometimes take advantage of Namibian citizens, cajoling or tricking or bribing them into marriages purely to obtain the right to live in Namibia and eventually to get Namibian citizenship (after 10 years of marriage).

The bill authorises investigations of marriages to foreign nationals suspected of being in bad faith.

If bad faith is discovered, then the marriage cannot be the basis for any residency or citizenship rights.

There are several protections to make sure that such investigations are carried out fairly.

The investigation must be concluded within a reasonable period after the marriage takes place and the marriage will be treated as being in good faith while the investigation is underway.

The bill also rules out enquiries into the sexual relationship between the spouses, to protect their privacy.

The problematic parts

(1) Parental consent to marry for people under age 21: The Constitution gives people “of full age” the right to marry. The minimum age for civil marriage will remain age 18 – which is also the age of majority.

But the bill requires people under 21 to have parental consent before they can enter into a civil marriage.

It gets around the constitutional issue by defining the term “full age” to include this exception.

The parental consent requirement is not new – it was already incorporated into the 2015 Child Care and Protection Act. The question is whether this is really what the Constitution intended by “full age”.

(2) Prohibition on same-sex marriages: Civil marriages concluded in Namibia have always been limited to between one man and one woman, in line with a common law rule that underpins the current Marriage Act.

So putting this rule into the bill does not really change anything – if the courts find this rule is contrary to the Constitution, it does not matter if it is in a statute or not.

It depends on the interpretation of article 14 of the Constitution, which says “men and women” have the right to marry and to found a family – does this mean men have the right to marry and women have the right to marry, or that the right applies only when a man and a woman want to marry each other?

This is an issue that the courts must still decide.

The more immediate problem is that the bill is worded in a way that would generally prohibit recognising foreign same-sex marriages – which contradicts the existing Supreme Court ruling that the constitutional rights to equality and dignity mandate the recognition of foreign same-sex marriages for immigration purposes.

This is almost certain to put parliament and the Namibian judicial system on a collision course.

Clarifying a few misconceptions

(1) The bill applies only to civil marriages: A law aimed at providing for the registration of customary marriage was proposed by Namibia’s Law Reform and Development Commission 20 years ago, but has not yet moved forward.

The bill requires people already party to any customary marriage to disclose that fact and reiterates current legal requirement that a civil marriage in those circumstances must be out of community of property to protect the property rights of the customary spouse or spouses.

However, it does not generally govern customary marriages.

(2) The minimum age for both civil and customary marriage is 18: This applies to all marriages by the Child Care and Protection Act, but its existence is sometimes overlooked.

(3) Adultery is not a crime: One parliamentarian worried that a man who is simultaneously in a civil marriage and a customary marriage with different women might be charged with adultery.

Adultery was never a crime in Namibia and is no longer a basis for civil damages – although it can be the basis for divorce.

(4) Neither the current law nor the proposed bill embodies the phrase “till death do us part”: Both laws provide for a set marriage formula.

There is no bar to incorporating additional components into vows if the parties wish to do so.

But to respect different views on marriage, the law does not require any promise that the marriage must remain in place during the life of the spouses.

Spouses are free to add to marriage vows as they choose, but their additional vows are not legally enforceable.

• *Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.