LAW OF PERSONS – DIVORCE – CHILD CUSTODY AND MAINTENANCE AND FORFEITURE OF BENEFITS. Brinkman v Brinkman NAHCMD (6 September 2023)

Order:

1. The bonds of marriage subsisting between the plaintiff and the defendant are hereby dissolved.
2. Custody of the minor child, MMB, is awarded to the defendant with the reasonable access of the plaintiff to the minor child.
3. The plaintiff shall pay the defendant N$2000 per month for the maintenance of the minor child.
4. The plaintiff shall retain the minor child on his medical aid scheme.
5. The plaintiff and the defendant must in equal shares pay for the educational expenses of the minor child, including primary school fees, secondary school fees, tertiary education fees, and expenses reasonably incidental to and connected with educational expenses.
6. The joint estate must be divided in equal shares between the parties.
7. The matter is finalised and removed from the roll.

Reasons for order:

Parker AJ:

‘In the instant action, the plaintiff sought the following relief:

1. 1. a final order of divorce;
   2. the parties to maintain the two minor children of the family;
   3. the plaintiff to retain custody of the minor son, JJB, and the defendant the minor daughter, MMB; and
   4. the defendant to forfeit the benefits arising from the marriage in community of property.

[3]       The relief sought in para [1](2) above is a rehash of the common law.  At common law, both parties have a duty to maintain the children of the family in proportions equal to their individual capability.  For instance, the girl child is a beneficiary of a medical aid scheme subscribed to by the plaintiff and he testified that he would retain her on his medical aid scheme until she reaches the age of majority.

[5]       The plaintiff prays that the court grants an order whereby the defendant forfeits the benefits arising from the marriage in community of property on the ground of malicious desertion on the part of the defendant.  On the evidence, I find that the parties have been married to each other since 30 April 2011 in community of property. On 26 March 2021, the defendant left the matrimonial home and has not returned thereto.  The defendant feared for her life as a result of persistent violence, perpetrated against her by the plaintiff so much so that she applied for and obtained interim protection orders from the Magistrate’s Court of Okahandja on two separate occasions. The first was granted on 2 December 2019 and the second on 26 March 2021.

[6]       In my view, the interim orders were granted because the magistrate’s court accepted to a prima facie degree that the plaintiff had perpetuated violence against the defendant in the form of physical abuse, economic abuse, harassment, and emotional, verbal, or psychological abuse.

[8]       Therefore, I reject the submission by Mr Nanhapo that the interim orders were not confirmed because there were no acts of violence perpetrated against the defendant.  Fear is the bad feeling that you have when you are in danger, when something bad might happen to you, or when a particular thing frightens you.  It is a general feeling. It is, therefore, subjective.  In my view, the fact that the defendant applied for the interim orders establishes the fear she had of the plaintiff.  On the facts and in the circumstances, the fact that the interim orders were not confirmed is of no moment.  I do not find her feeling of fear of the plaintiff unjustified.

[9]       Malicious desertion is the departure of a spouse from the matrimonial home without good cause. The critical question is, therefore, whether the plaintiff made marriage life insufferable for the defendant.

[10]     On the evidence, I find that the plaintiff’s violent conduct rendered further cohabitation with him dangerous for the defendant.  The plaintiff made marriage life insufferable for the defendant. Consequently, I conclude that the defendant departed from the matrimonial home with good cause.

[11]      The result is that the plaintiff has failed to establish malicious desertion on the part of the defendant.  Consequently, I decline to grant a general forfeiture order against the defendant, and a priori, I incline to grant the defendant’s claim in reconvention that the court orders the division of the joint estate equally between the plaintiff and the defendant.  I have decided previously the defendant’s other claims in reconvention set out in paras 3, 4, 5, and 6 of her counterclaims.

[12]      As to costs, I find that the parties have shared the honours almost equally.  I, therefore, think that it is just and reasonable that each party pays his or her own costs of suit.’