The Scope of Divorce Mediation: A Question For Namibia

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

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.