Namibia’s justice minister Yvonne Dausab has announced that a no-fault divorce law should be in place by the end of the current financial year. It’s long past time.
The country’s current divorce law is based on the principle that one party should prove that the other is to blame for the breakup. Most common are claims of adultery and of one partner leaving the home. Where such an allegation is made, the courts usually order that the spouse who has left should return and restore conjugal rights to the injured partner; only if that fails will a divorce order be granted.
But what if there is a history of violence?
Dausab’s announcement about an imminent change to the law coincided with the divorce of RW from her husband AW. Their case illustrates this particular problem.
RW brought the divorce proceedings on the grounds of desertion. But she added that, during their marriage, AW had abused her emotionally, verbally, psychologically and physically. It was so bad that she had obtained a protection order from the Windhoek magistrate’s court, barring her husband from coming anywhere near her.
Unusually, the divorce court had something of a taste of the behaviour RW complained about.
The law requires that the parties both participate in a case-planning conference, with a judge assigned to manage the matter. They are expected to file a joint case plan at least three days before that conference.
AW, however, refused to have anything to do with this. The wife’s lawyer said he acted in “a derogatory and disrespectful manner” towards her. And when the case was finally heard, judge Esi Schimming-Chase said the e-mail exchange between the parties showed that AW did not respond to phone calls and that he had objected to the proposed dates. Asked to suggest alternative dates, his response was, in the words of the judge, “a hostile and highly insulting tirade [with] extremely derogatory remarks” about his wife.
[If] restoration is ordered, [the marital home] may be the very cradle of violence, if not the killing field
Finalised at once
AW failed to appear in court for the case planning conference as instructed, and ignored the orders to produce certain documents.
Then, on the day of the hearing, when the wife began her evidence, the husband personally appeared, saying he wanted “answers” from her. Told it was now too late, he said he was a lay litigant who didn’t understand the rules.
By this stage, the judge noted, AW had not complied with a single rule of court or court order.
As AW pressed his views, RW became noticeably uneasy. Asked to explain, she said she was nervous and raised the question of the protection order. The husband then became “belligerent” both with RW and with the court, said Schimming-Chase. She “excused” him from court due to his “disorderly conduct”, but he had to be “escorted” out by an official.
In his absence, RW gave evidence about his violence and threats to her and to their older child.
Against all of this, the court had to decide whether to issue a restitution order instructing the restoration of conjugal rights, as is normal when one party “deserts” the other.
However, Schimming-Chase quoted a 2022 decision by Thomas Masuku that, where a protection order has been issued against one party, it is “inadvisable” for the court to order the restoration of conjugal rights lest “the marital home to which restoration is ordered may be the very cradle of violence, if not the killing field”.
The judge found it was preferable to make no initial restitution order and to finalise the divorce at once. In doing so, she made an order about maintenance and other costs relating to the children.
She also found it would not be in the interests of the children to order reasonable access by their father until a social worker has investigated the situation and submitted a report to the children’s court for a final decision.
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