The Married Equality Act, adopted in 1996, provides that the minimum legal age of marriage is 18 years for both men and women. However, persons under the age of 21 are considered minors, and need the consent of their father and mother to marry (if both are living), as well as special permission from the State. In addition, the Marriage Equality Act and Family Law both provide that men and women must freely consent to the marriage.
This legislation is, however, only applicable to civil marriages and not customary marriages, for which there is no defined minimum age of marriage. A Bill on the Recognition of Customary Marriages has been developed and if adopted, would also set the minimum age for customary marriage at 18. Similarly, the Child Care and Protection Bill currently being developed by the Ministry of Gender Equality and Child Welfare would also set the legal age of marriage at 18.
At present, civil marriages are legally registered while customary marriages are not.
The Bill on Recognition of Customary Marriages, would however, grant customary law marriages full legal recognition and registration, under the condition that the persons are of full age and have freely given consent and that neither is party to an existing customary law marriage or a marriage under common law. At present, the Constitution states that customary law survives only to the extent that it does not conflict with the Constitution.
Although more recent data is not available, according to the 2001 census, 19% of all Namibians age 15 and over were married in civil marriages, compared to 9% of people in customary marriages. Another 7% were living as husband and wife without entering into civil or customary marriage.
in Namibia is not as common compared to other African countries. The United Nations reports, based on 2006 data, that 5.4% of girls between 15 and 19 years of age were married, divorced or widowed, compared to 0.4% of boys in the same age range.
The 1996 Married Persons Equality Act removed the husband’s right to act as the sole head of the family, however this only applies to civil marriages.
Both parents now share parental authority
, and they have equal child custody rights in the event of divorce. The Maintenance Act (2003) provides that parents are legally responsible for maintaining their children; independent of whether the children were born inside or outside marriage or whether the marriage was civil or customary.
The law automatically grants widows guardianship or custody of her children. In practice, however, family members may “inherit” both the wife and children up the death of her husband.
Custody of young children in the event of a divorce
is often awarded to the mother and custody of older children to fathers, while the parent who is not given custody is, by law, expected to provide regular contributions for the child’s expenses.
In practice, however, orders on guardianship and custody are not always implemented.
is currently governed by the Intestate Succession Ordinance 12 of 1946 and the Native Administration Proclamation 15 of 1928, as well as the 1996 Married Person’s Equality Act.
Under civil marriage, the type of property arrangement affects the inheritance regime. The default marital property regime is full community of property, and for couples married under the latter, the surviving spouse is entitled to half the value of the joint estate. The other half forms the estate of the deceased spouse and is divided according to their will.
There is no discrimination between sons and daughters under civil marriages.
In addition the Children’s Status Act states that children born outside of marriage are to be treated the same as those born within marriage, including matters of inheritance.
The Communal Land Reform of 2002 protects widow’s (and widower’s) rights to communal land tenure by allowing them to remain on communal land allocated to their deceased spouse, even in the event that they remarry.
Under customary law, inheritance can be discriminatory towards women, with widows being dispossessed of their deceased husband’s property or land. The property is generally allocated to another male relative of the deceased.
It is reported that ‘wife inheritance’ is also practiced in Namibia, where widows are either forced or pressured to marry their deceased husband’s brother as a condition of allowing the widow to receive any of her deceased husband’s property or to remain in the home. The Chronic Poverty Research Centre reports that in 2006/2007, 29.4% of widows inherited the majority of assets after their spouses passed.
Heated parliamentary debate over whether or not to legalize polygamy
has been ongoing since 2009. At present, polygamy is not recognized under Namibian civil law, although polygamous unions under customary law have been recognized since 2003. If the Bill on the Recognition of Customary Marriages described above were to be adopted, polygamous marriages would be outlawed in that, according to the Act, neither prospective spouse may be party to an existing customary or civil law marriage. Data from the 2006-07 Demographic Health Survey (DHS) indicates that 6% of currently married women are in a marriage with co-wives (ranging as high as 17% depending on region). Interestingly, 13% of married women have no knowledge about the number of co-wives they have. The survey also reports that polygamy does not vary much by women’s age, although rural women are more likely than urban women to live in a polygamous union.
In November 2004, the Law Reform and Development Commission published a Divorce Bill, which proposes a no-fault divorce
regime that is based on the ground of irretrievable breakdown of marriage, to replace the out-dated fault-based system that currently applies.
The current law on divorce
is, however, still based on the fault principle and the high costs and inaccessibility of the present system result in limited access to divorce, especially for the financially weaker spouse.
According to the 2006-2007 DHS, 4.4% of women and 3.9% of men age 15-49 were divorced or separated.
The adolescent fertility rate according to the 2006-2007 DHS is 74,3 per 1000 women age 15-19.
Data from the 2006-2007 Demographic Health Survey also provides a snapshot of gender equality in household decision-making. Decisions over women’s earnings are, for the most part made jointly between husband and wife (49.5%) or mainly by the wife (39.4%). For large household purchases, 52.3% of women reported that such decisions were made jointly with their husbands, while 23.8% reported that decisions were made solely by their husbands. Decisions about daily household needs are primarily made by women themselves (40.6%) or jointly by husbands and wives (40.5%).
 CEDAW (2013) p.13  Gender Links (2012) p.19  Idem  CEDAW (2013) p.10  Gender Links (2012) p.15  Gender Links (2012) p.12  OECD (2014), Gender, Institutions and Development Database, http://stats.oecd.org  DHS (2006-2007) p.75  Gender Links (2012) p.14  Idem, p.16  Idem, p.20  Gender Links (2012) p.16;  Gender Links (2012) p.16  CEDAW (2013) p.9; Gender Links (2012) p.6  World Bank (2013)  Idem  CEDAW (2013) p.49  Gender Links (2012) p.16  Idem  Chronic Poverty Research Center (2011) p.20  Idem, p.76  CEDAW (2013) p.11  Idem  DHS (2006-2007) p.75  DHS (2006-2007) p.239; United Nations MDG Database: Adolescent Birthrate (2013)  DHS (2006-2007) p.240