Study on cohabitation in Nam reveals much
Windhoek – Even though cohabiting relationships are common in Namibia, few people are aware of the limited protection available under the law. There is no legal duty of support between cohabitants either during the relationship or when it ends. Cohabiting partners have no clear right to share assets which are in the name of one partner only when the relationship comes to an end, even if both partners made contributions towards the assets and this often works against women, as a couple’s valuable assets like cars or houses are often put in the name of the male partner. According to a recent national survey seven to 15 percent of Namibian adults are in cohabitation relationships. This is likely to be an under-estimate of the true figures as many people may not report that they are cohabiting due to the stigma that may be attached. It is against this background that the Legal Assistance Centre has releases a report titled A Family Affair –The Status of Cohabitation in Namibia, which has been handed over to the Law Reform and Development Commission in the hope that it will provide the basis for law reform on this topic. The purpose of the study is to assess the status of cohabitation in Namibia, to gauge public opinion on the need for law reform and to make recommendations for legislative change. Data was collected through 61 individual interviews with cohabitants and key informants and 10 focus group discussions in 2002 and in 2009. According to the report the law currently provides little protection for cohabiting couples in Namibia. The report states that the cohabiting partner has no right to occupy a common home which is individually owned or leased by the other partner, and cohabiting partners have no rights in respect of private land or communal land which is held in the name of the partner. The research also found out that some of the reasons why couples live together informally rather than marrying are because they cannot afford the expenses associated with marriage (including an elaborate wedding or the expected lobola), or because one partner (usually the man) is unwilling to marry, or is already married to someone else. Many of the respondents indicated that there is a power imbalance in the cohabiting relationships with the male partner having greater control over assets and about half of the cohabiting partners interviewed reported that they share household expenses with the other partner; in the other relationships it was most commonly the man who paid for household expenses. Although there are a few existing legal mechanisms that can be invoked by cohabiting couples, the current laws are not designed to cater for cohabiting couples and are inadequate to produce fair outcomes in most cohabitation situations. Furthermore, the current laws are inconsistent, with some statutes including cohabiting partners in their definitions of “dependent” (such as the Government Service Pension Act) while other statutes currently exclude cohabitants (such as the Motor Vehicle Accidents Fund Act). The research assessed public opinion on the need for law reforms. A strong majority of persons consulted were in favour of improved legal protection for cohabitating partners. “Participants felt particularly strongly that there should be some mechanism for fair division of property, with more mixed opinions on duties of maintenance after a cohabitation relationship ends,” the report reads. It was recommended that there is a need for legal protection supported by the Namibian Constitution which protects the family, prohibits discrimination on the basis of sex and social status, and provides for the right to dignity. Court cases in Namibia and South Africa show that all these rights are relevant to cohabitation. Some people say that the law should not assign any consequences to cohabitation because of the need to respect a couple’s choice not to marry. However in a society marked by gender inequality, the idea of choice operates differently for women and men – with women often being in a weaker bargaining position than men because they are economically weaker and more vulnerable to domestic violence. Choice is also problematic because many cohabiting partners realize only after the relationship ends that that the law gives them no protection. Furthermore, it is appropriate for the law to look at the social functions of cohabiting relationships, where couples generally pool their labour and resources, and regulate accordingly. The report concludes by saying the government should draft a bill on cohabitation that is based on basic level or automatic protection for cohabiting couples who satisfy certain criteria as well as optional registration of the relationship which can be accompanied by a cohabitation agreement between the parties if they choose.