Divorce obtained overseas could be recognised in Sri Lanka: CA

By Lakmal Sooriyagoda  

In a landmark judgement pertaining to the scope of the divorce laws in Sri Lanka, the Court of Appeal has recently held that a District Court in Sri Lanka is not restricted from accepting a valid document proving the dissolution of a marriage issued by a competent court in another country.  

However, the Court of Appeal held that this acceptance must be subject to the guidelines spelt out by the court and the provisions of the law relating to evidence. 

The first guideline is to ascertain whether the law of such a country has conferred the jurisdiction to the respective court to dissolve marriages entered into in a foreign territory. Secondly, it is essential that both parties who entered into the contract of marriage in Sri Lanka have been residing in the respective country, for a reasonable period of time when applying for a divorce. Thirdly, both the husband and wife should actively participate in such divorce proceedings in a foreign court while being subjected to the procedure adopted in such a court concerning matrimonial actions.  

The petitioner, one Silva in a writ application sought an order quashing the decision of the Registrar General of Marriages for Sri Lanka. The Registrar had informed the Petitioner that when a marriage is registered as per the laws of Sri Lanka he is unable to recognise a dissolution of a marriage obtained in a foreign country, under the prevailing laws of this country. The Registrar had opined that the Petitioner ought to obtain a decree from a competent court in Sri Lanka filing a divorce action.  
In this case, the petitioner is a dual citizen of Sri Lanka and the United Kingdom, married one Poorna on December 09, 2010, in Colombo. Due to the subsequent breakdown of their marriage, the Petitioner has instituted an action for divorce in the Kaduwela District Court. However, his wife, the third Respondent in the petition informed the Kaduwela District Court that she had, by that time, filed for divorce in the Family Court at Kingston-Upon-Thames in England. Due to this reason, the Petitioner withdrew the divorce case in the Kaduwela District Court. The Petitioner states that subsequently, by a decree issued on May 02, 2018, by the Court in England, the marriage between the Petitioner and the third Respondent was dissolved.  

Subsequently, the Petitioner has requested from the Registrar that legal effect be given in Sri Lanka to the decree of dissolution of marriage obtained in England and to record such dissolution by removing the entry of the marriage with the third Respondent from the relevant register. However, the Registrar had informed the Petitioner that the divorce obtained in England could not be recognised in Sri Lanka, as per the advice received from the Attorney General’s Department and that the Petitioner should obtain a Divorce, especially from a competent court in Sri Lanka.  

After having considered the laws and the legal jurisprudence, the Court of Appeal two-judge-bench comprising Justices Sobhitha Rajakaruna and Dhammika Ganepola ruled that a valid decree of dissolution of marriage entered into in a foreign country can be given effect, when necessary, within Sri Lanka, subject to other laws of this country and the above guidelines formulated by the court.  

Counsel Senany Dayaratne with Nishadi Wickramasinghe appeared for the Petitioner. State Counsel Nayomi Kahavita with State Counsel M. Fernando appeared for the Registrar General.    

• The Registrar had informed the Petitioner that when a marriage is registered as per the laws of Sri Lanka he is unable to recognise a dissolution of a marriage obtained in a foreign country, under the prevailing laws of this country