Is marriage casual or a commitment?
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04 October 2019
Author   Jackie Wilson Asheeke
Recent movements in Namibia to make obtaining a divorce easier are a double-edged sword.  Those pushing ‘fast food’ divorces are well-intentioned.  However, my antennae always go up when people praise only one side of a story. 
This may be a law change, but in effect, it is a seismic social, moral and cultural shift.  It reduces the value of the sanctity of marriage.  If a critical mass within Namibian society agrees with this shift, so be it.  But, have ordinary people even discussed this? 
Marriage is loving and sacred.  It is not just a union of people in love, it is a lifelong contract; a commitment.  But, let us not speak of fairy tales.  Marriages are entered into and fail for different reasons; divorce is a fact of life.  How divorce happens is something society must debate.
From what I have read about the proposed change to the divorce law, the plaintiff will not be required to prove fault to obtain a divorce but must only allege that the marriage has broken down irretrievably.  The current divorce law is based on the out-dated Roman-Dutch common law, which provides for divorce based on fault. This means that to obtain a divorce, one spouse must prove that the other spouse committed a matrimonial offence.  Providing such proof can be a serious barrier.  I believe that the current divorce law should be amended to provide wider definitions on what is proof and what is a ‘matrimonial offence’.  Just as adultery is a matrimonial offense, beating the crap out of your spouse should be too.
We all know that the Namibian law-making processes are slower than a tortoise with arthritis.  That said, I wish those making announcements about changes in the law would be honest about it.  The new divorce bill is probably a year (or two) away from being signed into law (if it gets that far).  Recent news articles make it seem like ‘self-service’ divorces will become law tomorrow.  In this election-interrupted legislative year, this law must wait its turn to be debated in parliament.  On top of that, our socially conservative lawmakers don’t want sex education in schools, blame teenage girls for getting pregnant, and are in the Stone Age about LBGTQI and same-sex marriage.  Speedy divorce is by no means a done-deal legislatively. 
For once, I like the slow pace.  Society at all levels, should discuss this issue longer. 
There are those who have deep, foundational beliefs in the sanctity of marriage.  The existing divorce law refers to the sanctity of marriage, but the new law does not.  Why?
My plea is for a law that allows divorce actions for ‘irretrievable breakdown’ without throwing away the option for a divorce suit due to fault.
There should be a clause that allows for divorce when only one side pursues it, but with reasonable consideration for the other party.  Here I am thinking about situations when one party wants to try to work things out.  Or, there are husbands who want to marry their girlfriends and chuck out their wives (or vice versa).  With the new law, they will be able to do this as many times as they choose, claiming ‘irretrievable breakdown’ – nobody’s fault - bye-bye baby.  Is this what people want?
I am very concerned about a battered wife that wants OUT of the marriage and the control-freak husband who doesn’t want to let go of his vulnerable punching bag.  The law should try to address that situation in favour of the victim.  However, we should not base a law that affects everyone on situations that affect some.
Is there a provision (when only one side wants the divorce) for a cooling off period or certifications that there has been counselling attempted?  For accusations of abuse, is there scope for police and hospital/doctor’s reports or sworn witness statements to be submitted as valid evidence?  Why not amend the existing law to allow proven domestic abuse (emotional and physical) as grounds for divorce?  In many countries, this is already the case.
I am reminded of marriages in several countries where the husband merely has to say three times, “I divorce you” to his wife and the marriage is dead!  With this new divorce law, are we moving a tiny step towards that kind of thing?
Perhaps I don’t understand the legal fine print.  Who decides when the marriage has ‘broken down irretrievably’?  Does one party to the legal union merely have to ‘allege’ that the marriage is dead?  Aside from love and religious beliefs, isn’t marriage a legal contract?  Can one party wake up one day and decide that a joint contract is void?
Consider this:  We laugh and make jokes about ‘blessees and blessers’, sugar daddies, and married men with girlfriends.  Married men have babies with other women.  There are men and women who abandon their spouses.  So many Namibians flock to churches to sing praises on Sunday, but they are mute on Monday about the pain, hurt and betrayal caused by violations to the sanctity of marriage.  Are we changing divorce laws to make it easier for beleaguered women to leave violent marriages or are we doing it to allow people to abandon their commitments with a no-fault hall pass?
To me, a no-fault divorce implies that both parties caused the end of the marriage.  What if one party committed the marital offense?  Doesn’t a mantle of ‘no-fault’, affect the settlement?  In a breach of contract case, the one causing the damages pays the price.  But if there are no ‘causes’ for a divorce, how are the damages assessed?
Fidelity is promised when the wedding certificate is signed.  For those in a church marriage, it is a pledge before God.  If that sacred promise is broken, this new law says that it doesn’t matter.  People should remove the ‘until death us do part’ phrase from their wedding vows.  Instead, they must insert ‘until either of us decides that the marriage is irretrievably broken.’ 
Namibia already has a significant divorce rate for a variety of reasons and perhaps we need to understand why this is the case.  Nevertheless, marriage should not be casual, it is a commitment.  This email address is being protected from spambots. You need JavaScript enabled to view it.
 
 
 

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