On 2 October 2024, the President of Namibia signed the new Marriages Act, 2024, which seeks to repeal and replace the Marriage Act, 1961 (and its various amendments), the Marriages, Births and Deaths Amendment Act, 1987 and portions of the Married Persons Equality Act, 1996 and Child Care and Protection Act, 2015. Although the new Marriages Act, 2024 is not yet in force and will only come into operation on a date determined by the Minister by notice in the Government Gazette, the aforesaid Act will have wide-reaching implications in Namibian society once brought into force.
Important definitions under the Marriage Act, 2024
Under the Marriage Act, 2024, several key definitions have been introduced which would serve to alter and shape the legal framework for marriage in Namibia.
"Marriage" is defined as, inter alia, a "legal union entered into voluntarily between two persons of the opposite sex and of full age".
The term "opposite sex" refers specifically to the male and female sexes, such as "being as determinately assigned for purposes of birth registration".
"Spouse" is defined as "a person, whether male or female, who is married to a person of the opposite sex and includes such person who is a party to a foreign marriage".
A "foreign marriage", in turns, refers to a marriage which "is entered into outside of Namibia voluntariy between persons of the opposite sex who ae 18 years or older" and complies with the further requirements set out in section 31.
A New Pre-Marriage Confirmation Process:
The Marriage Act, 2024 further seeks to introduce a new set of administrative requirements which intended spouses would have to complete before they can say their "I do's". We have set out this new process below:
- Notification of Intention to Marry (Section 12)
Intending spouses are required to jointly submit a notification to the Registrar-General of their intent to marry at least 90 days before the planned marriage date, through a registrar in the region where either spouse resides or where the marriage is to be solemnised. The notification must include several key documents, such as proof of identity, consent required due to the age of the intending spouses (if applicable), proof of the dissolution of previous marriages (if applicable), and a sworn declaration from each spouse confirming that they are not currently married or involved in a foreign marriage and that there are no legal impediments to the marriage. Additional information, such as the intended marriage date, location, the name of the marriage officer, and details of any subsisting customary marriages, must also be provided. The registrar is required to transmit such documentation as soon as practically possible to the Registrar-General for review.
- Special conditions for foreign nationals (Section 13)
Foreign nationals (who are not permanent residents of Namibia) who intend to marry a Namibian citizen, or a permanent resident of Namibia must submit additional documentation. This includes evidence of no outstanding arrest warrants or Interpol notices, a certificate of marital status from the foreign national's home country, and proof of legal residency in Namibia (such as a valid visa or permit). If the documents are not in English, certified translations must be provided. Once the required documents are submitted, the registrar must within seven days transmit the documentation to the Registrar-General for review.
- Verification and public notice (Section 14)
Once the notification of the intended marriage is received by the registrar, the registrar must ensure notice is placed on the online notice board of the Ministry, physically posted in public places, and made known to the public through other platforms or locations as prescribed by the Minister. The notice must include specific details, such as the full names, surnames, and birthdates of the intending spouses, the date and location of the intended marriage, the name of the marriage officer, contact details for submitting objections, the prescribed period during which objections can be made, and any other relevant information as prescribed. The public notice must be displayed for a minimum of 21 days, during which time any person may object, citing legal reasons, such as the existence of a legal impediment.
- Pre-marriage confirmation issuance (Section 16)
The Registrar-General (in the case of a foreign national or where an objection was received) or the registrar of a particular region (in any other case) will confirm that the marriage complies with all legal requirements and will issue a pre-marriage confirmation.
- Expiry of pre-marriage confirmation (Section 19)
A pre-marriage confirmation issued under the Marriage Act, 2024 is valid for 90 days from the date of issue. It may be renewed for one additional 90-day period upon application, provided good cause is shown for the extension. No further extensions are allowed. Once the confirmation expires, a marriage officer is prohibited from solemnising the marriage.
- Cancellation of pre-Marriage confirmation (Section 20)
If, after the issue of the pre-marriage confirmation, a legal impediment is discovered, the confirmation may be cancelled. The intending spouses will be notified of the cancellation, and the marriage cannot proceed until the relevant issue is resolved.
Implications for Namibians, same-sex couples, and foreign nationals
The Marriage Act, 2024, brings significant legal changes for Namibians, same-sex couples, and foreign nationals. For Namibian citizens, the Marriage Act, 2024, maintains the requirement for a 90-day notification period and pre-marriage confirmation before marriage, ensuring that all marriages meet the necessary legal standards.
The Marriage Act, 2024, continues to exclude same-sex couples from legal recognition, regardless of whether such marriage was solemnised in Namibia or in a foreign country (even if such a foreign country permits same-sex marriages. This contrasts with the Supreme Court's 2023 landmark ruling in Digashu v Government of Namibia, which recognised the constitutional rights of same-sex couples to have their foreign marriages recognised for immigration purposes. A further implication is that, for purposes of considering the sex of a spouse, the Marriages Act, 2024 only recognises the sex, which was so assumed to such spouse at birth, accordingly, excluding the recognition of any transgender spouse other than the sex to assigned at birth.
For foreign nationals, the Marriage Act, 2024, introduces a more stringent process, requiring them to submit additional documentation, such as proof of legal residency and marital status, especially in cases involving foreign marriages.
Constitutionality of the Marriage Act, 2024
The Marriage Act, 2024, raises important questions about its constitutionality, particularly in relation to Articles 8, 10, and 14 of the Namibian Constitution. Article 8 guarantees the right to human dignity, which could be argued to be infringed by the exclusion of same-sex marriages from recognition, potentially undermining their dignity by denying them the same legal rights as opposite-sex couples. This interpretation would also align with the ruling of the Supreme Court in the Digashu case.
Further, Article 10 ensures equality for all persons before the law and prohibits discrimination. The definition of marriage as solely between a man and a woman could be considered discriminatory. This is especially relevant in light of international human rights trends that increasingly support the equality of same-sex relationships.
Finally, Article 14 quantifies the right to marry and founding a family, which may be challenged by the 90-day notification period and the pre-marriage confirmation process, raising concerns about whether these requirements unfairly restrict individuals' access to marriage.
Accordingly, unless the Marriages Act, 2024 is constitutionally challenged, once brought into force, its provisions will therefore have far-reaching consequences, for both Namibians and foreigners; opposite-sex couples and same-sex couples; and, lastly, cisgender and transgender persons.
*Reviewed by Hartmut Ruppel, an Executive at ENSafrica | Namibia.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
