Married couples seeking divorce will no longer have to prove adultery, cruelty, desertion or other forms of marital misconduct following the implementation of the Dissolution of Marriages Act, 2024.

The new law, which came into effect on Wednesday, replaces the fault-based divorce system with a no-fault system based on the irretrievable breakdown of a marriage.

Under the previous system, a spouse seeking divorce had to file a summons and allege wrongdoing by the other party. 

The process often led to contested court proceedings and increased legal costs.

Lawyer Bianca Boois explains that the new dispensation requires spouses to show only that the marriage has broken down and cannot be reconciled.

"So the new system is going to be based only on irreconcilable differences. So you have to satisfy the court that the differences that we have, we cannot be reconciled, okay? So, which means that the old fault-based system is now completely out. So you haven't been staying together as husband and wife for a long time. There is abuse. You don't have to cite all of those grounds necessarily."

Boois says mediation will now play a central role in divorce proceedings. 

"And also now what the new dispensation is doing is that mediation will be compulsory. So either you can do a private mediation with the two parties and have a settlement agreement signed, or at the close of pleadings, then there will be court-connected mediation. So the mediation process is going to be now fully involved, and that gives the parties really an opportunity to sit down and come together and discuss how they want to deal with the estate, whether they are married in community of property or whether they are married out of community of property. And also in terms of the new dispensation, it's not only going to be that if you are married in community of property, then definitely we are going to split the estate 50-50. The court is going to look at factors such as how long the marriage has been taking place and how long you have been married. The court is going to look at what your financial contribution was during the time period of the marriage because sometimes people get married in community of property, but then one spouse already has assets and the other person doesn't have any assets. But now in terms of the community of property regime, it means that those assets must be split 50-50. And this new dispensation is saying, but wait a minute, let's maybe not say, let's revisit this. Is there something you want to add?" 

The Act further allows courts to consider factors such as the duration of the marriage and each spouse's financial contribution when determining the division of property.

Another change is the extension of divorce jurisdiction to regional courts. 

Couples will no longer be required to travel to the High Court in Windhoek or Oshakati to obtain a divorce, as cases can now be heard in lower courts.

The Law Society of Namibia (LSN) will conduct training on the Act for legal practitioners over the weekend.