Immanuel clarifies law on hybrid marriages

Sostenus Wilherm

Justice and labour relations minister Fillemon Wise Immanuel has clarified that people entering civil marriages must disclose existing customary spouses, following questions in Parliament on Wednesday about bigamy and the recognition of customary marriages.

Immanuel made the clarification while responding to an urgent oral question from Affirmative Repositioning (AR) Member of Parliament Tuhafeni Kalola, who raised concerns following reports of a woman allegedly married to three men.

Kalola asked the minister to explain how civil and customary marriages are treated under Namibian law, saying the issue had left some young people confused about what is legally permitted.

“Last Monday we read about an issue of bigamy, where a woman was married to three men, and I do understand that we recognize civil and customary marriage, but you can’t marry more than one person under civil marriage,” Kalola said.

He acknowledged that a hybrid arrangement involving civil and customary marriages exists, but asked Immanuel to clarify how the law applies to cases involving multiple spouses.

“I understand there is a hybrid where you can go for civil and customary marriage, but this specific one of polygamy, please clarify this issue. There are a lot of young people here that are not married and they are confused,” Kalola said.

Immanuel stressed that the legal position should be explained according to the constitution and the country’s laws, rather than personal beliefs or emotions surrounding marriage.

“More often than not, when we engage this question, I think it inevitably stirs the emotion from some members of this August House,” he said.

“But I want to accentuate that emotional choices should never take precedence over our solemn duty to uphold the Constitution.”

The minister said public representatives had a responsibility to explain the law accurately, regardless of their personal views on marriage and customary practices.

“We have taken the oath of office to uphold and respect the Namibian Constitution. Now, inherent in that oath is a duty to explain, to uphold and explain, what the correct legal position of the country is, irrespective of what our personal sentiments are,” he said.

Immanuel stated that bigamy is a common-law crime, explaining that civil marriage does not permit a person to marry more than one spouse under the same legal arrangement.

“Bigamy, Honourable Speaker, bigamy is a common-law crime. It’s a common-law crime to the extent that when one is married through the civil marriage it’s expected that you cannot marry, you know, more than one spouse under the same regime,” he said.

He also explained that customary marriages are recognised under Article 66 of the Namibian Constitution, which provides for the recognition of customary law as part of the country’s legal framework.

“Article 66 of the Namibian Constitution is the foundation and the legal expression for legal pluralism and cultural heritage in this country,” Immanuel said.

He added that customary marriage is legally recognised under the constitutional provision, while distinguishing that recognition from the formalities that different customary laws may require.

The minister further referred to the Marriage Act, Act 14 of 2024, saying section 12(2)(h) provides for the disclosure of customary spouses when a person enters into a civil marriage.

“That anyone that is now entering in civil marriage, you are required to disclose to the Minister of Home Affairs and her staff that you have a spouse or an existing customary marriage spouse,” Immanuel said.

He explained that the disclosure requirement is intended to bring formality to the registration of customary spouses.

Immanuel also referred to section 12(3) of the Act in discussing matrimonial property arrangements involving people married to more than one spouse, although he cautioned that he was outlining the general legal principle.

Concluding his response, the minister maintained that Namibia’s legal position on the matter was clear and called for the law to be explained accurately whenever questions about customary and civil marriages arise.

“Our legal position is clear on this question that keeps on reoccurring. For those of us that may have different views, it is important that we explain the legal position as correct as provided in the Constitution,” he said.