the married person equality act - Legal Assistance Centre

The Married Persons Equality Act 1 of 1996 © Based on a template produced by the Gender Research and Advocacy Project of the Legal Assistance Centre The Legal Assistance Centre takes no responsibility for any changes made to the template

The Constitution of Namibia Article 10 1.

All persons shall be equal before the law.

2.

No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.

Article 14 1.

Men and women……shall be entitled to equal rights as to marriage, during marriage and at its dissolution.

The Married Person’s Equality Act • The MPEA removes sexual discrimination from civil marriages

• Married equality means that in the eyes of the law a man does not have the power to rule his wife just because he is a man

Marital power • Before the MPEA the husband legally controlled everything – this included property, debts, loans etc

• The MPEA got rid of marital power - husbands and wives now have equal decision-making powers

Types of marriages in Namibia Civil Marriage

Customary Marriage

• Wedding occurs before registered marriage officer • Marriage certificate issued • Wedding registered with government

• Follows customs & traditions of community • Currently not registered • No marriage certificate

Civil or customary

How are you married? • Most of the rules in the MPEA only apply to civil marriages • Most civil marriages in Namibia are in community

• Out of community marriages requires an antenuptial contract • This means that the default is in community • To change the default, the couple must make an ante-nuptial contract with a lawyer’s help BEFORE the wedding

Marriage north of the old “Police Zone” •

•

The Native Administration Proclamation 15 of 1928 says that marriages between blacks in Owamboland, Kavango & Caprivi from 1 August 1950 are automatically OUT of community To change this default, the couple must go to a magistrate and fill in a form saying that they want a different system BEFORE the wedding

Property and marriage In community of property • Everything before marriage becomes part of the estate • Everything bought once married also part of estate • Each partner owns half • MPEA says that people married in community must both AGREE to sell property

Out of community • Everything before and during marriage remains your own • Each responsible for own loans and debts • Only cost of household needs should be shared

IN community – the exceptions Consent from the other spouse is NOT needed if you are: – selling or trading shares on a registered stock exchange – dealing with bank deposits or building society shares in own name – performing any of the listed transactions which are part of own normal profession or business

IN community – the exceptions • In most cases you need the consent from your spouse to bring or defend a court case. But consent from the other spouse is NOT needed if: – the case involves your own separate property – the case is for damages resulting from injury to yourself – the case is related to your employment or business

OUT of community – the exceptions • Although property is separate, either spouse can be liable for the debts of household necessities that one spouse has incurred

How is consent given? • In most cases consent can be given orally or in writing – Actions involving deeds of land or any documents registered with the deeds office must be in writing

• In most cases consent can be given within a reasonable time afterwards – This does not apply to transactions involving land

Marriage and children • Both parents are joint custodians and equal guardian • No need to consult each other – except for adoption or immigrating to another country • If a children under the age of 21 wants to marry, consent from both parents is required • If a child under the age of 18 wants to marry, consent from both parents & from the state is required

Question • The school requires the mother of a child to sign papers. The father is away from home. Can the mother sign the papers?

Answer • Yes. The married parents of a child have equal guardianship. This means they have equal power to make legal decisions independently (with some exceptions)

The MPEA and divorce • In community of property – everything shared equally • Out of community of property – each partner keeps their own property

The MPEA and inheritance In community • Joint estate divided in half • If there is a will, half share of the deceased given to beneficiaries as will directs • If no will, half share of the deceased divided between spouse and children Out of community • Property of deceased given to people named in the will, or divided between spouse and children; surviving spouse keeps own property

Questions for marriages in community of property If one partner acts without consent of the other what happens if money or property is lost? – Transaction can only be reversed if 3rd party knew this consent had not been given – Partner can ask the High Court to divide the joint estate in half while they are still married so that the partners can control their own halves, OR ask for an adjustment to make up for the loss if the partner has separate property, or at divorce or death

• John sells furniture belonging to the joint household for N$5000 without his wife’s consent and gambles away the money • If the couple later get divorced, Jane can ask that N$2500 be taken from John’s portion of the estate to make up for her share of the money lost

• Mark and Mary are married in community of property but have made an agreement that certain types of property, such as inheritance, are separate from the joint estate. Mark owns a piece of land that is separate to the joint estate • Mark sells the family car without Mary’s consent and then gambles away the money • Mary can ask the High Court to order Mark to sell the land to make up for the money she has lost

What if the spouse continues to misuse the joint estate? • The High Court can – order the partner to stop using the joint estate – order the partner not to engage in specific transactions

• The injured spouse could also tell the third party involved in the transactions that consent has not been given

What if my partner will not agree to a transaction? • The High Court can give permission to the spouse to act without the partner if there are reasonable grounds to do so. This could be if: – – – –

the spouse is unreasonably withholding consent the spouse cannot be located the spouse has been unconscious for a long time there is another good reason

Question • If a couple are married IN community of property, can a spouse buy a house without the consent of the other spouse?

Answer It depends • Yes – provided that the joint estate NOT is used to pay for the property or used to obtain a loan • No – if the house is to be paid for in instalments which continue for +1 year If the land is part of the joint estate, it must be registered in both names

Question • If a couple are married IN community of property, can a spouse sell a house without the consent of the other spouse?

Answer • No, consent from both spouses is required. Written consent is required in advance.

Conclusion • The MPEA has strong symbolic value because it states that a husband and wife are equal in a marriage

• Marriage can be either IN community of property or OUT of community of property • Although the MPEA states that husband and wife are equal, much more needs to be done in Namibia to ensure that men and women truly are equal in marriage.