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Marital Property in Civil and Customary Marriages

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MMAARRIITTAALL PPRROOPPEERRTTYY IINN CCIIVVIILL AANNDD CCUUSSTTOOMMAARRYY MMAARRRRIIAAGGEESS PROPOSALS FOR LAW REFORM Gender Research & Advocacy Project LEGAL ASSISTANCE CENTRE 2005 ACKNOWLEDGEMENTS The information in this research report was collected and compiled by Dianne Hubbard, Beth Terry, Sarah Field, Elizabeth Cassidy, Evelyn Zimba-Naris, Susan Taylor, Heather Sherdahl, Melinda Maasdorp, Leigh-Anne Agnew and Mercedes Ovis. The final report was drafted by Dianne Hubbard and Beth Terry (Chapter 5), and edited by Dianne Hubbard. Interviews conducted on behalf of the Legal Assistance Centre (LAC) were carried out by Evelyn Zimba-Naris, Linda Dumba, Ruusa Shipiki, Natasha Bassingthwaighte, Erenstine Kalomo, Maria Mahalie, Uno Katjipuka, Felicity Owoses, Gokulan Thamba- pali, Sakaria Panduleni, Kadhila Amoomo and Stanley Shandapindi. The project was carried out in close consultation with the Gender Training and Research Programme of the Multi-Disciplinary Research and Consultancy Centre at the University of Namibia (UNAM). The LAC participated in the shaping of questionnaires used as the basis for the UNAM report, Women’s Property and Inheritance Rights in Namibia, and data collected by means of those questionnaires has been drawn on by means of independent analysis for this report. These two reports are intended to complement each other and should ideally be read together. The result is, we hope, a rich and multi-faceted look at social and legal aspects of women’s property ownership in different contexts. This report overlaps to some extent with a previous LAC report, Proposals for Law Reform on the Recognition of Customary Marriages (1999). However, this report is informed by subsequent field research in Namibia, by more recent developments in the region, and by proposals put forward by government in the intervening period. There is also some overlap with portions of another previous LAC report, Proposals for Divorce Law Reform in Namibia (2000). Once again, however, this report attempts to take the issues discussed in that report one step further by incorporating more recent developments. A third related LAC report is Customary Laws on Inheritance in Namibia: Issues and questions for consideration in developing new legislation (2005). Our goal in this study is to give greater clarity to property issues in civil and customary marriage by considering them together. This report was prepared with funds provided by Development Alternatives, Inc. with financing from the U.S. Agency for International Development under Contract Number FAO-Q-00-96-90006-00, NGO Small Grants Program, and by Austrian Development Cooperation through the North-South Institute. ISBN 99916-63-13-4 Legal Assistance Centre, 4 Körner St, Windhoek PO Box 604, Windhoek, Namibia Tel. (264) (061) 223356 Fax 234953 Email [email protected] Website www.lac.org.na CONTENTS Chapter 1: INTRODUCTION ...................................................................................1 Chapter 2: THE NAMIBIAN CONSTITUTIONAL AND POLICY FRAMEWORK .......................................................................................3 Chapter 3: NAMIBIA’S INTERNATIONAL OBLIGATIONS...................................24 Chapter 4: THE CURRENT LEGAL POSITION ....................................................32 Chapter 5: FIELD RESEARCH: OPINIONS ON LAW REFORM RELEVANT TO MARITAL PROPERTY...................................................................62 Chapter 6: THE RANGE OF POSSIBLE MARITAL PROPERTY REGIMES ......137 Chapter 7: STATUTORY ALTERATIONS TO EXISTING REGIMES ..................153 Chapter 8: THE DEFAULT REGIME ................................................................... 192 Chapter 9: MARITAL PROPERTY IN POLYGAMOUS AND “HYBRID MARRIAGES”.................................................................................... 207 Chapter 10: ANTE-NUPTIAL AGREEMENTS AND POST-NUPTIAL CHANGES ......................................................................................... 219 Chapter 11: LOBOLA............................................................................................. 237 Chapter 12: PROPERTY DIVISION UPON DIVORCE ..........................................252 Chapter 13: PROPERTY DIVISION UPON DEATH ..............................................260 Chapter 14: THE MATRIMONIAL HOME .............................................................263 Chapter 15: MUSLIM MARRIAGES ...................................................................... 277 Chapter 16: JOINT BANK ACCOUNTS FOR MARRIED COUPLES....................289 i The LAC is unable to credit the artist whose ‘feather figures’ grace the cover of this report. We scanned them from ‘gift cards’ purchased by a staff member from a street trader in Windhoek. We only know that the artist’s initials are B.M. As we have not been able to find the artist, we have taken the liberty of using these images without permission. We hope that B.M. will somehow benefit from this ‘publicity’, and we hope to hear from him or her. ii Chapter 1 INTRODUCTION This chapter gives an overview of the report and explains the terminology used. 1. OVERVIEW 1.1 Thirteen years after independence, Namibian law on marital property is still marred by both race and sex discrimination. Furthermore, many aspects of the law on marital property are in need of reform because they are inadequate or outdated. 1.2 This report examines specific issues relating to marital property in respect of both civil and customary marriage and discusses proposals for law reform in this area, in light of the current situation and the concerns and preferences of persons interviewed in a range of regions. 1.2.1 The report attempts to discuss marital property separately from related family law issues, such as divorce, inheritance and general issues relating to the recognition of customary marriages. However, this is not always possible, as family law topics are unavoidably intertwined. 1.3 The Legal Assistance Centre has conducted separate research on aspects of inheritance, published in separate reports.1 However, as others have wisely observed, “inheritance rights pre-date death”.2 1.3.1 Inheritance and marital property regimes are very closely linked, because the marital property system which applies will affect the contents of the “estate” of the deceased which is distributed amongst the heirs. If laws on marital property provide for a certain division of the couple’s assets upon dissolution of the marriage, the assets which rightfully belong to the surviving spouse will not form part of the deceased’s estate. 1.3.2 This is in technical terms a separate question from the inheritance rights of the surviving spouse, but the two issues are not always kept separate in public discourse. The average person is understandably more focused on the practical question of what the surviving spouse “gets”, regardless of the legal mechanism involved. 1.3.3 Because the two issues (division of marital property upon death of a spouse and inheritance by the surviving spouse) overlap, they will be discussed together in some places in this report. 1 See Legal Assistance Centre, Customary Laws on Inheritance in Namibia: Issues and questions for consideration in developing new legislation (June 2005) and Legal Assistance Centre, The Meanings of Inheritance: Perspectives on Namibian inheritance practices (September 2005). 2 Centre on Housing Rights and Evictions, Bringing Equality Home: Promoting and Protecting the Inheritance Rights of Women, A Survey of Law and Practice in Southern Africa, 2004 at 32. Introduction 1 1.4 Another related issue is maintenance of the surviving spouse and dependants, which is taken out of the estate of the deceased before distribution to the heirs. This topic is not a focus of this report, although it is mentioned in discussions of marital property as part of the whole picture.3 1.5 The Legal Assistance Centre is planning to publish a report on property issues and other matters relating to cohabitation in 2006. 1.6 The report does not attempt a socio-economic analysis of the relative posi- tions of women and men in marriage or in Namibian society. A more general exami- nation of women’s property rights is contained in the report Women’s Property and Inheritance Rights in Namibia, published by the Gender Training and Research Programme of the Multi-Disciplinary Research and Consultancy Centre at the University of Namibia in 2004. The two reports were prepared in close consultation, and should be read as companion pieces. 2. TERMINOLOGY 2.1 This paper uses the term “marital property” to refer to the property arrange- ments which apply to couples who marry, by reference to different “marital property regimes”. The term “marital property” when used in this way is not intended to indicate joint ownership – it refers more broadly to the systems for sharing or keeping separate the property of married persons. 2.1.1 This report will use the term “marital property” because it covers a broad range of issues relating to marriage and property arrangements. 2.2 Another term which is sometimes used in this context is “matrimonial prop- erty”. For example, South Africa has a piece of legislation entitled the “Matrimonial Property Act”. However, South African family law expert June Sinclair asserts that “matrimonial property” is a new term in South African law, pointing out that it can be understood to refer only to the property acquired during the marriage by the joint efforts or contributions of the parties.4 2.2.1 The Namibian Law Reform
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