Auleria Wakudumo
Hundreds of traditionally married couples across Namibia continue to face severe legal and financial vulnerabilities, as customary marriages remain unrecognised for general legal purposes. Legal experts and traditional leaders have renewed urgent calls for couples to formalise their unions, warning that the current legal gap leaves grieving spouses, particularly widows, at risk of losing their property and inheritance to hostile relatives.
Senior legal practitioner and former acting High Court judge Anne-Doris Hans-Kaumbi highlighted that while new legislation like the Marriage Act 14 of 2024 has been passed to eventually register these unions, its commencement is still pending, leaving couples dependent on civil marriage certificates for full protection while inheritance discussions remain heavily taboo in rural communities.
A recent incident at Oushini village in the Ohangwena region highlighted these concerns after a 25-year-old man was arrested for allegedly assaulting and chasing away his stepmother, who had been living with and caring for his father before he passed away two weeks ago.
She said the law requires considering the customs of the relevant communities when determining whether a customary marriage existed and what the surviving spouse is entitled to inherit.
“For all intents and purposes, you are not considered married,” Hans-Kaumbi said.
She explained the limitations of customary marriages under the current legal framework.
Article 66 of the Namibian constitution does not specifically provide for or regulate customary marriages. However, it recognises the continued validity of customary law, provided it is consisted with the constitution and statutory law. Because customary marriages derive their validity and incidents from customary law, Article 66 provides an important constitutional basis for recognizing the customary law under which these marriages are concluded.
Article 66 recognises customary law and the Marriage Act 2024 acknowledges customary marriages. However, neither provision alone establishes a comprehensive statutory regime for customary marriages.
Hans-Kaumbi said the Marriage Act, 2024 and the Civil Registration and Identification Act, 2024 have not yet commenced. Their commencement is expected to enable work towards the recognition and registration of customary marriages through the relevant legal framework.
She said the ultimate goal is to establish a system that recognises customary marriages and allows them to be registered with the home affairs ministry.
“Namibia values its customs, so it is only fair if we work towards a system that incorporates who we are as people,” she said.
Until the law changes, couples marrying traditionally should consider civil marriage for legal recognition and protection.
Hans-Kaumbi said a customary marriage certificate confirms the union but lacks the legal details and protections of a civil certificate, which can specify the couple’s matrimonial property regime, including whether they are married in or out of community of property.
Some medical aid schemes accept customary certificates, while others hesitate because their legal status is uncertain.
Inheritance disputes
Hans-Kaumbi said inheritance under customary law differs between communities. She stated that families often meet to discuss the distribution of a deceased person’s estate and the position of the surviving spouse.
She urged traditionally or civilly married couples to make wills, consider joint property ownership and discuss inheritance while both partners are alive. Many cohabiting couples, especially in rural areas, avoid these conversations for fear of seeming to wish their partner harm or anticipate their death.
Hans-Kaumbi said such discussions help couples understand their rights and plans for their families. She also noted challenges for children born outside marriage who lack full birth certificates proving their relationship to a deceased parent. She said section 99 of the Child Care and Protection Act requires children born outside marriage to be treated equally with children born within marriage for inheritance and other purposes.
“The inability to establish a child’s relationship with a deceased parent can nevertheless complicate inheritance claims,” she said. Hans-Kaumbi said customary marriage certificates may also serve as evidence when a surviving spouse seeks to claim benefits, including those from the Government Institutions Pension Fund (GIPF), although the outcome depends on the applicable requirements.
Formalisation
Uukwambi Traditional Authority chief and former chairperson of the eight northern traditional authorities, Ndilimani Iipumbu, said customary marriage procedures were adopted by the eight authorities to help protect widows and women who are left vulnerable after their husbands die.
He said some couples live together for 10 to 20 years, yet when the man dies, the woman may be forced from the home or left with nothing. Iipumbu warned that long-term cohabitation does not automatically constitute a customary marriage. He urged couples to approach local headmen to establish and document their unions.
The Uukwambi chief said the process includes a three-month investigation into whether the couple genuinely lived as partners. Witnesses, including parents, may be asked to confirm the relationship before a customary marriage certificate is issued. Couples should act before a partner dies, he said. Ondonga Traditional Authority chairperson John Walenga said traditional authorities issue customary marriage certificates, with headmen facilitating the process. He said customary marriage practices vary across Namibia’s traditional authorities. Walenga said certificates document customary unions and prove a marriage took place. Their legal recognition remains a concern for couples seeking to establish marital status outside their traditional communities.
Protecting families
Couples are encouraged to seek legal advice on property, inheritance, and matrimonial arrangements rather than assuming a customary marriage certificate automatically provides the same protections as a civil marriage certificate.
Hans-Kaumbi also urged couples to discuss their wishes regarding property and inheritance and to make appropriate arrangements while they can still do so.
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