1. 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

2. The Constitution of Namibia
Article 10
All 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 14
Men 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 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

4. 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

6. Types of marriages in Namibia
Civil Marriage
Wedding occurs before registered marriage officer
Marriage certificate issued
Wedding registered with government
Customary Marriage
Follows customs & traditions of community
Currently not registered
No marriage certificate
Civil or customary

7. 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

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 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

9. In community of property
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

10. 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

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 property
the case is for damages resulting from injury to yourself
the 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 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

14. 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

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

16. 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)

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

18. 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

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 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

20. 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

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 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

22. 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

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

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

25. 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

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

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

28. 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.