By Rinelda Mouton
Divorce will no longer need to prove adultery, cruelty, desertion, or any other form of marital wrongdoing.
The newly-implemented no-fault divorce system aims to simplify the legal process, reduce conflict between spouses, and allow couples to end a marriage without assigning blame for its breakdown.
The new divorce dispensation applies only to proceedings instituted on or after 3 June 2026. Any divorce proceeding already pending before that date will continue to be governed by the previous framework and the old rules of court until finalisation.
The DoMA applies only to marriages concluded and registered in Namibia in terms of the marriage act 25 of 1961 or recognised in terms of the recognition certain marriages act of 18 of 1991 (the so-called SWAPO marriages).
The Dissolution of Marriages Act, 2024 (the DoMA), replaces the previous fault-based divorce system with a modern no-fault system founded on the single ground of irretrievable breakdown of marriage.
The new divorce dispensation reflects on fundamental shift in the philosophy of Namibian divorce law under the previous legal framework – divorce proceedings were largely fault-based, parties were generally required to prove matrimonial misconduct, proceedings were highly adversarial, fault featured prominently in litigation and divorce proceedings could only be instituted through action proceedings.
The new framework however seeks to reduce hostility and conflict be- tween spouses, simplify divorce procedures, promote amicable resolution of disputes, recognise the reality of marital breakdown, reduce unnecessary accusations, protect the interests of children and ensure that divorce proceedings are conducted consistently with constitutional values of dignity, equality, fairness and personal autonomy.
Namibia has adopted what is commonly referred to as a ‘no-fault divorce’ system.
However this does not mean that a divorce will automatically be granted merely because one spouse says so. The spouse(s) seeking divorce must still place sufficient facts before the court to establish that the marriage has indeed irretrievably broken down. The court remains under duty to scrutinise the evidence carefully before granting a decree of divorce.
The court will consider all relevant circumstances which may includes the old grounds for divorce, prolonged separation, complete breakdown in communication, repeated conflict, absence of companionship or intimacy, failed reconciliation attempts, abuse, serious incompatibility, abandonment of the marital relationship, emotional estrangement or any other facts demonstrating that the marriage relationship cannot realistically be restored.
The courts role is not to conduct a moral inquiry into which spouse is to blame for the failure of the marriage. The should avoid reverting to fault-finding, moral condemnation or finding the continuation of the marriages that have lost substance and reality.
The interests of minor children remains of paramount importance. The court retains an independent duty to ensure that proper arrangements are made for children, parental responsibilities and rights are appropriately regulated, maintenance obligations are adequately addressed and the welfare and best interests of children are protect.
The court may refuse to grant a divorce until satisfied that proper arrangements have made for the children.
