2 The Constitution of Namibia Article 10All persons shall be equal before the law.No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.Article 14Men and women……shall be entitled to equal rights as to marriage, during marriage and at its dissolution.
3 The Married Person’s Equality Act The MPEA removes sexual discrimination from civil marriagesMarried 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
4 Marital powerBefore the MPEA the husband legally controlled everythingthis included property, debts, loans etcThe MPEA got rid of marital power - husbands and wives now have equal decision-making powers
6 Types of marriages in Namibia Civil MarriageWedding occurs before registered marriage officerMarriage certificate issuedWedding registered with governmentCustomary MarriageFollows customs & traditions of communityCurrently not registeredNo marriage certificateCivil or customary
7 How are you married?Most of the rules in the MPEA only apply to civil marriagesMost civil marriages in Namibia are in communityOut of community marriages requires an antenuptial contractThis means that the default is in communityTo change the default, the couple must make an ante-nuptial contract with a lawyer’s help BEFORE the wedding
8 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 communityTo 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
9 In community of property Property and marriageIn community of propertyEverything before marriage becomes part of the estateEverything bought once married also part of estateEach partner owns halfMPEA says that people married in community must both AGREE to sell propertyOut of communityEverything before and during marriage remains your ownEach responsible for own loans and debtsOnly cost of household needs should be shared
10 IN community – the exceptions Consent from the other spouse is NOT needed if you are:selling or trading shares on a registered stock exchangedealing with bank deposits or building society shares in own nameperforming any of the listed transactions which are part of own normal profession or business
11 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 propertythe case is for damages resulting from injury to yourselfthe case is related to your employment or business
12 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
13 How is consent given?In most cases consent can be given orally or in writingActions involving deeds of land or any documents registered with the deeds office must be in writingIn most cases consent can be given within a reasonable time afterwardsThis does not apply to transactions involving land
14 Marriage and childrenBoth parents are joint custodians and equal guardianNo need to consult each other – except for adoption or immigrating to another countryIf a children under the age of 21 wants to marry, consent from both parents is requiredIf a child under the age of 18 wants to marry, consent from both parents & from the state is required
15 QuestionThe school requires the mother of a child to sign papers. The father is away from home. Can the mother sign the papers?
16 AnswerYes. The married parents of a child have equal guardianship. This means they have equal power to make legal decisions independently (with some exceptions)
17 The MPEA and divorceIn community of property – everything shared equallyOut of community of property – each partner keeps their own property
18 The MPEA and inheritance In communityJoint estate divided in halfIf there is a will, half share of the deceased given to beneficiaries as will directsIf no will, half share of the deceased divided between spouse and childrenOut of communityProperty of deceased given to people named in the will, or divided between spouse and children; surviving spouse keeps own property
19 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 givenPartner 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
20 John sells furniture belonging to the joint household for N$5000 without his wife’s consent and gambles away the moneyIf 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
21 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 estateMark sells the family car without Mary’s consent and then gambles away the moneyMary can ask the High Court to order Mark to sell the land to make up for the money she has lost
22 What if the spouse continues to misuse the joint estate? The High Court canorder the partner to stop using the joint estateorder the partner not to engage in specific transactionsThe injured spouse could also tell the third party involved in the transactions that consent has not been given
23 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 consentthe spouse cannot be locatedthe spouse has been unconscious for a long timethere is another good reason
24 QuestionIf a couple are married IN community of property, can a spouse buy a house without the consent of the other spouse?
25 AnswerIt dependsYes – provided that the joint estate NOT is used to pay for the property or used to obtain a loanNo – if the house is to be paid for in instalments which continue for +1 yearIf the land is part of the joint estate, it must be registered in both names
26 QuestionIf a couple are married IN community of property, can a spouse sell a house without the consent of the other spouse?
27 AnswerNo, consent from both spouses is required. Written consent is required in advance.
28 ConclusionThe MPEA has strong symbolic value because it states that a husband and wife are equal in a marriageMarriage can be either IN community of property or OUT of community of propertyAlthough 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.