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The Scope of Divorce Mediation: A Question For Namibia

by John Ford
September 2007

First published in the African Initiative for Mediation Quarterly Newsletter dated June 2007.

John Ford

Namibian society can be characterized as a patriarchy. Women are not treated equally and experience discrimination at all levels of society, especially in the family. Spousal abuse and domestic violence is openly acknowledged as “a widespread and serious problem.”[1] Constitutionally there is gender equality and discrimination on the basis of sex is prohibited. However existing laws, customs and practices operate to constrain the full realization of the constitutions noble aspirations.[2]

The Namibian legal system is part of a patriarchal society. The laws are still predominantly ‘man made’ and the courts male staffed. There is general acceptance that the substantive aspects of the law of marriage and divorce are in need of reform. But what about the procedural reform?

Divorce mediation is one possibility. As an informal process it is an instrument for the application of equity rather than the rule of law and allows the social and cultural context of relationships to be considered and emotions to be dealt with. Legal rights are not abandoned but the hierarchical element of the adversarial adjudicatory system is eliminated through the promotion of self-determination. Furthermore, abstract rules of evidence or legalistic notions of relevancy are not employed to limit the context.

In 1999 the Legal Assistance Center (LAC) in Namibia , commissioned me to write a paper on the procedural aspects of the law of divorce and how it can be reformed. This extract, which reflects the legal landscape of that time, focuses on the scope of divorce mediation.

Defining the Scope

A civil divorce requires that three broad substantive topics or issues are considered and if necessary addressed. They are custody, child and spousal maintenance, and the division of property. Where ‘divorce mediation’ is used as a defining concept, the number of issues will be limited. Where ‘family mediation’ is used, the scope is wider and other disputes such as between parents and children, adoption disputes, and gay and lesbian separation disputes can be included.

A feature of marriage in Namibia is the reliance on both civil and customary law norms. Customary law does not frame the issues arising on divorce in the same manner as the civil law. Where a bridal consideration was paid that would be an issue. Custody and child maintenance would be addressed by the decision of whether the children remained with the father or mothers family. On divorce the wife’s guardian was again expected to assume responsibility to support her.

Mediators in North America have challenged the conventional language used to describe the issues that a divorcing couple must address. Custody and visitation both invoke images of prison and incarceration. Haynes suggests that non-judgmental terms without negative connotations are better suited. Thus “parenting” is substituted for “custody” and “access” for “visitation.”[3] In Namibia , legislation that will provide protection to children has proposed that the term “residence” replace “custody”, and “contact” replace “visitation.”

Fineman has argued that the change in terminology has affected the power relationship between spouses in divorce while ignoring the fact that shared parenting and joint custody agreements still “resemble sole maternal custody and parental visitation.”[4] Thus rather than allowing the institution of the sole custodial parent to be debated, it has been marganalized to the detriment of women. The different social reality that women experience is effectively ignored.

The need for debate about the issues that these semantic questions raise is important for Namibia . It is hoped that concerns in regard to inappropriate language can de addressed, while recognizing the realities of women’s role in childcare, and the fact that Namibian law currently discriminates against men.[5] In this paper both the traditional terms and their alternatives will be used.

Custody, Parenting or Residence

The questions of custody and guardianship arise whether or not children are born of a marriage. Custody deals with the children’s primary place of residence and day to day decision making, while guardianship to the right to take final decisions about all issues that are not the custodial parent’s sole responsibility. In all deliberations the best interests of the children are paramount, and the High Court assumes the protective role of upper-guardian of all minor children.

The Namibian constitution emphasizes the children’s perspective, and at the same time seeks to address the position of women in society. The concern has been expressed that in the process of resolving questions about custody in the best interests of the children, the position of women as a disadvantaged group will continue to be taken for granted. As Burman has argued in South Africa , the courts have a duty to ensure that neither children nor women are “sacrificed in the interest of bestowing a greater degree of self-determination on the parties.”[6] In other words, constitutional rights should not be abandoned for the sake of advancing mediation.

In South Africa and Namibia , the courts have shown a general reluctance to grant orders of joint custody. In terms of the ‘tender years doctrine’ sole custody is normally awarded to the mother. The basis for the reluctance to sanction joint custody agreements is a concern that parents would be unable to take the necessary day to day decisions about their children.

Visitation, access or contact rights are available to fathers where the child was born of a marriage and the best interests of the child are being met. At present, mothers of children born outside of marriage have sole guardianship and custody rights. Fathers still have a duty to pay maintenance but have no rights to guardianship, custody or visitation. The constitution appears to have changed this position in providing children the right to be known by both their parents, and prohibiting discrimination on the grounds of sex.

Holiday schedules and the procedure for moving away from a current address are issues related to access and visitation that should also be addressed

The adversarial approach “awards” custody to the appropriate parent. In that sense the custodial parent is a winner and the non-custodial parent a loser. Although the best interest’s doctrine allows for the adoption of a future orientation, disputes about who is more appropriate are typically resolved by having regard to past conduct.

Mediators frame the question of custody in terms of future parenting with a bias in favor of involvement by both parents. This has led some states in the USA to enact legislation that presumes that joint custody is in the best interests of the children.[7] As mentioned earlier, it has also led feminists such as Fineman to question the effect this has had on power relations between men and women.

The Namibian Constitution is clear in its intention to outlaw gender discrimination against women and men, to address the unequal position of women in society, and to ensure that children know both their parents. It is in this context that the best interests of children must be reconciled.

Maintenance and Support

Maintenance and support of children and spouses is the second broad category that must be considered in all divorces.

Regardless of marital status, parents share an obligation or duty to support their children proportionate to their financial resources. When minor children are involved the court will require that the issue of maintenance be addressed prior to granting a divorce. The Maintenance Court is a division of the Magistrates Court and has jurisdiction to hear maintenance claims, and this is the forum where most disputes about maintenance issues are resolved. Although maintenance is not a customary law concept, a mother of a child born of a customary law marriage may also apply for child support in the Maintenance Court.

The procedure followed in the Maintenance Court involves an informal hearing presided over by a maintenance officer with the aim of reaching an acceptable settlement. If an agreement is reached, it is made an order of court by a magistrate. If no agreement is reached the matter is referred to the court for trial.

The informal hearing resembles mediation in that the parents are encouraged by a third party- the maintenance officer- to make their own decisions. The official typically uses the authority of the court to muscle an agreement. The proceedings are not voluntary in that the father is subpoenaed to attend. According to a study conducted by the LAC in 1994, the vast majority of all cases are resolved by agreement.

Although a satisfactory arrangement must be made for maintenance when divorcing, the practice is that maintenance is often not contested during the divorce. Where the husband files a notice of opposition, it is not uncommon for the wife to lower her claim for maintenance so that the divorce can be finalized, because of the assurance that she can apply for an increase in the maintenance court. Burman has expressed concern about the separation of maintenance from the other divorce issues as it affects the power balance and deprives women of a valuable bargaining chip.[8]

Unless the court orders spousal support on divorce, a spouse cannot make a subsequent claim for such support. In the vast majority of divorces no spousal support is ordered.[9] This is alarming given the high degree of dependency the wife often has on the husband for financial support. Although the goal may be mutual financial independence, the challenge of divorcing spouses is to share responsibility of any dependency.

Property Division

Save for civil marriages between blacks, entered after 1950 and to the north of ‘the police line’, all civil law marriages are in community of property and the joint estate stands to be divided equally on divorce. In 71.6% of all marriages surveyed by the LAC between 1990 and 1995 the spouses marital property regime was in community of property.

An ante nuptial contract (ANC) lawfully entered prior to the marriage may provide for the exclusion of the common matrimonial regime, in which case each spouse will have separate estates. On divorce each spouse retains what is his or hers, unless another system, such as the accrual system is introduced. The accrual system requires a balancing of the spouses estates on divorce by having regard to the amounts by which each respective estate has grown during the marriage. Thus although the spouses had separate property regimes during the marriage, an equitable division of the combined estates is effected on divorce.

The figures generated by the LAC survey revealed that in 17.9% of all cases the court ordered the division of the joint estate without a detailed agreement, and in 19.7% of the cases was silent on the question of property. In 39.8% of the cases a detailed agreement provided how the estate was to be shared. In other cases the court left the spouses to determine how the estate is going to be divided with limited supervision. These figures suggest that the parties are essentially free to resolve how they are going to divide their estates, and the courts are reluctant to interfere with the private ordering of property matters.

Where the property question is consciously addressed, regardless of whether the parties are married in community of property, or out of community, or out of community subject to the accrual system, it appears that it is up to the spouses to determine what standards they will use to determine what is a fair division in their circumstances. Save for general contractual principles and considerations of public policy there is nothing to prevent the spouses from agreeing to something less or more than what they are legally entitled to.

Mediators follow a structured process to deal with property division and in its most simple form provides for asset identification, asset understanding, asset valuation and asset division. While the law is important in creating certain parameters, mediation “gives clients the right, the ability and the process to determine what is right for their family.”[10]

Rather than the spouses fighting to get as much as possible at the expense of one another, mediators encourage the spouses to divide the property in a way that meets their future needs and if necessary addresses the fact that one (normally the wife) is in an economically dependant position.

Conclusion

Divorce mediation has emerged as a viable complement to the adversarial divorce in various parts of the western world, especially since the 1970’s. The recent movement toward divorce mediation has been prompted by increasing rates of divorce and the strain that places on the legal system, but equally through the recognition that the adversarial court system is an inappropriate forum to deal with the social and cultural context of relationships, and the intense emotions associated with the divorce process.

Although a rights based approach that emphasizes the rule of law offers certain safeguards, mediation affords the parties the opportunity of resolving disputes themselves, including property divisions on an equitable basis. Mediation will not always be appropriate such as when a gross power imbalance exists. General training that focuses on power relations will be essential for any mediators. Domestic violence is so pervasive that this aspect will require special attention in the program design and also in regard to training.

However, there appears to be no reason why all of the issues arising from a divorce cannot be dealt with during mediation. In fact there appear to be sound arguments why divorce issues, especially maintenance, should not be severed from questions of custody and property division.



[1] Reported in Namibia ’s country report to the United Nation’s Committee on the Elimination of Discrimination Against Women (CEDAW), 1997.

[2] The Constitution of the Republic of Namibia provides in article 10 that “all persons shall be equal before the law”, and that “no person may be discriminated against on the grounds of sex.” Article 14 describes the family as the “natural and fundamental group unit in society.” Article 14(1) grants men and women “equal rights as to marriage, during marriage and at its dissolution.” In the context of affirmative action, article 23(3) permits the enactment of legislation that specifically acknowledges “the fact that women in Namibia have traditionally suffered special discrimination and need to be encouraged and enabled to play a full, equal and effective role in the political, social, economic and cultural life of the nation.”.

[3] Haynes, J. (1994) The Fundamentals of Family Mediation. State University of New York Press, Albany, at p.119.

[4] Fineman, M (1988) Dominant Discourse, Professional language and Legal Change in Child Custody Decision Making, 101 Harvard Law Review, 727, at p.733.

[5] Fathers of ‘illegitimate’ children only have duties and enjoy no rights in respect of minor children.

[6] Burman, S (1993) at p 459.

[7] Section 3080 of the California Family Code.

[8] Burman, S.(1993) at p 460.

[9] According to Table 5g of the LAC divorce Survey (1998) there is no spousal support in 85.5% of all divorces.

[10] Haynes, J.(1994) at p 92.

Biography


 

John Ford is the author of Peace at Work and founder of the HR Mediation Academy. He mediates; trains; and consults to organizations that have accepted the inevitability of conflict and are seeking to approach it with greater clarity and confidence. He was the managing editor of Mediate.com from 2000 to 2011, and is a past president of the Association for Dispute Resolution of Northern California. 



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Website: www.johnford.com

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