Our divorce law is ‘fault based’ and there should be matrimonial fault (in the form of the grounds of divorce enumerated above) on one party
(i.e., the guilty party).
The guilty party is cited as the Defendant in a
divorce action.
If there are properties held in common between the two spouses there is provision in law for a settlement of such assets. Property settlement in Sri Lanka at the stage of granting of a divorce is not based on equal distribution of assets. In Sri Lanka, the law recognises the individual ownership of each spouse’s assets. The parties are entitled to have properties in each of their names.
In Sri Lanka, presently, only fault-based divorces are recognised although there have been and still are attempts to introduce the ground of irreconcilable differences as a basis for divorce which would allow the parties to separate without having to allege some matrimonial fault..
By Kshalini Nonis
Marriage is not a bed of roses and any marriage has its good and bad times. but today numerous young and even older couples are getting divorced.
We interviewed Dhammika Welagedara Attorney –At- Law engaged in Civil and Appellate practice regarding divorce and some of the factors to consider when entering into it.
Q: What are the grounds for divorce in Sri Lanka ?
The Grounds of Divorce depends on the type of marriage you have entered into – such as marriages under the Marriage Registration Ordinance (No. 19 of 1907)- which is more commonly known as the General Marriage Ordinance, Kandyan Marriage and Divorce Act and Muslim Marriage and Divorce Act.
The most common form of marriage in Sri Lanka is marriages under the Marriage Registration Ordinance. Even a Kandyan or a Muslim is entitled to register the marriage under the Marriage Registration Ordinance – or register it as a ‘General Marriage.’
It is only marriages registered under the Marriage Registration Ordinance that can be dissolved by a District Court. In order to dissolve a marriage under Kandyan Marriage and Divorce Act and Muslim Marriage and Divorce Act applications need to be made before a District Registrar (or a Government Agent (GA) as he was then known) or a Quazi.
My answers to the questions are based on the assumption that the marriage is a “General Marriage.”
There are only three grounds of divorce available (section 19 of the Ordinance) for persons who have registered their marriage as a general marriage – namely,
Adultery subsequent to marriage;
Malicious desertion; and
Incurable impotency at the
time of marriage.
The grounds of Malicious desertion are two-fold –
where the guilty party leaves the spouse with the intention of ending the marriage[Malicious desertion] and
when the guilty party makes it impossible for the innocent party to stay with the guilty spouse (by either harassment, violence etc) and ‘drives out’ such party [Constructive Malicious desertion].
Our divorce law is ‘fault based’ and there should be matrimonial fault (in the form of the grounds of divorce enumerated above) on one party (i.e., the guilty party). The guilty party is cited as the Defendant in a
divorce action.
There is a misconception that separation for seven years can lead to an automatic dissolution of the marriage. This is due to an amendment done to the Civil Procedure Code. However, courts have held that this is not a ground for divorce- and you still have to come within the grounds set out in the Marriage Registration Ordinance when seeking a dissolution of a marriage.
Q: What are the most common factors for divorce?
Incompatibility of the parties is one of the most common factors which leads to a divorce. When the husband and wife are not compatible it often leads to differences and in the long run one of the parties may leave the other or may seek solace in a third party. Sometimes the interference by parents, aggravated by one party taking the side of the parents as opposed to one’s spouse too can lead to a breakdown of a marriage.
Q: At what stage in the breakdown of a marriage must legal advice be obtained?
Generally, clients seek legal help only after the marriage is irretrievably broken. However, if a party feels that the marriage is not working out or where one spouse gets to know of a third-party involvement (i.e. that the other spouse is involved with a member of the opposite sex – or is ‘cheating’) it would be prudent to seek legal advice to know what your rights are and also to get ready for a legal battle (in case the matter ends up in a ‘contested’ court case) by gathering evidence of any such matrimonial fault, the finances etc. of the other spouse.
Q: What about division of assets between the two parties?
If there are properties held in common between the two spouses there is provision in law for a settlement of such assets. Property settlement in Sri Lanka at the stage of granting of a divorce is not based on equal distribution of assets. Sri Lanka does not recognise the concept of community of property. A spouse doesn’t become entitled to the separate property of the other spouse due to a marriage being contracted between the parties. In Sri Lanka, the law recognises the individual ownership of each spouse’s assets. The parties are entitled to have properties in each of their names. Such properties need not be divided.
Q: Can a spouse claim for ancestral property?
A spouse is entitled to claim alimony from a guilty spouse. Alimony is generally sought by an innocent party in monetary terms. General practice in Sri Lanka is to seek a lump sum as Alimony from the guilty party, but it can be an annual or monthly sum. (Vide Section 615 of the Civil Procedure Code). However, the mere fact that one party is guilty does not automatically make such party liable for alimony. Court has to be satisfied that such party has the means to make such payments, and that the innocent party has considerably less wealth and/or income than the guilty spouse. The innocent party also has to establish that such monies are needed to ensure a lifestyle such party enjoyed during the time of the marriage.
Court has the power to order or the conveyance of properties as well as order the immoveable property in order to give effect to a judgement which orders the payment of alimony. Law does not draw a distinction between ancestral property or property acquired by other manners, with regard to the above.
Q: Can you tell us about maintenance?
Maintenance is a remedy available to a spouse who is not being supported by the breadwinner of the family.
The question of matrimonial fault does not come into play in this instance. It is a remedy available during the subsistence of a marriage and is sought in the Magistrate’s Court. Divorce actions are filed in the District Courts. However, there is a provision called ‘alimony pendente lite’ which allows a party to seek monies during the pendency of a divorce action. Although this is not termed ‘maintenance’ it is similar in that the party who is less wealthy or having a lesser income can seek monies from the other irrespective of who is at fault (matrimonial fault).
Similarly, there is another provision to seek ‘cost of the action’ when a party is not in a position to defray the cost of litigation. (Vide Section 614 of the Civil Procedure Code). In all these instances the court does not look at who is at fault. A Maintenance application in the Magistrate’s Court is more effective when it comes to implementation as if the party ordered to pay does not follow the order of Court (to pay a particular sum etc) court can order punishment for such disobedience.
Q: When it comes to couples with children, what is the procedure to be followed i.e. does the wife get custody of the children until they are 18 years etc? Also are there any procedures to be followed when having custody of
the children?
Generally, a court is reluctant to alter the status quo with regard to the custody of minor children – unless it would be against the best interest of the child or children for such parent to continue having custody. If a parent would have an undesirable or negative influence on the child (by reason of such parents lifestyle and habits etc) the Court is unlikely to give physical custody of the child or children to such a parent. The court as the ‘upper guardian’ of minor children would be guided by the ‘best interest’ of such children when granting custody to a parent. Early case law points
to concepts such as the preferential right of a father etc. however, the present-day courts only look at the ‘best interest’ of children. That would mean which of the two parents could give the child a better life and living condition.
Court is the upper guardian of the children, that is to say even if the natural parents can have the legal and physical custody of the children, the parents can be subject to the supervision of court. For this reason, the court always looks into what is in the best interest of the child.
Where custody of children is concerned, there are two types of actions that can be filed. A party can either seek the custody of the children as part of the divorce proceedings or a party can file a separate action claiming custody of children. Generally, the natural parents of the child are presumed to share the legal and physical custody of children. There is no rule as to who gets custody depending on the age of the child, the parents can seek to obtain the legal and physical custody of the child in varying degrees (i.e., complete custody, shared custody, custody with access to the other parent).
Parents could also enter into custody agreements which could be varied depending on the age of the child. However, in considering all these applications, court will consider the best interest of the child.
Q: What about the evaluation of joint finances/accounts?
A joint account holder is presumed to be entitled to an equal share of the monies in such an account, irrespective of the contribution towards such assets being unequal. However, Courts have powers to make suitable orders regarding the alimony to be paid and regarding property settlements post the decree of divorce and in even the interim (i.e., during the pendency of divorce proceedings). Therefore, if there are any joint finances and accounts the courts can take those into account and make suitable orders in a manner that the parties get to retain their respective shares of such finances and accounts.
Q: What are the documents you need to get in order for a divorce ?
The marriage certificate and if there are any minor children from the marriage, copies of their birth certificates are essential in order to institute a divorce action. The custody of minor children has to be dealt in a divorce action. Thus, copies of such certificates are necessary and are generally attached to a Divorce Plaint.
Title deeds to properties too may be helpful in order for the lawyer preparing the papers to know the assets of the parties and their financial position prior to filing any action. The courts have substantial power to make suitable orders for property settlements (considering
any pre-nuptial or post nuptial arrangements also), therefore, a party would be seeking relief from the court where there will be a transfer of a property involved in order to make a suitable settlement of assets, it would be helpful to have all documentary proof of title to the relevant properties.
In addition, the courts also tend to assess you and your spouse’s current lifestyle especially in order to decide on the quantum of alimony therefore documentation as to the income and expenses of the two spouses would also be of help.
Divorce actions can be filed in a court within which either party resides. Thus, if the two spouses are resident in different areas the party which institutes action has the choice of selecting where to file action. (For example if one party lives within the jurisdiction of the District Court of Colombo and the other party lives within the jurisdiction of the District Court of Kandy – the action can be instituted either in District Court of Colombo or District Court of Kandy.)
However, there are instances where action is filed in courts which do not have jurisdiction, merely looking at the convenience or in order to cut costs. For example, there have been instances where actions have been filed where both parties reside in foreign countries or where a fake address is given in order to bring an action in a particular court house for strategic reasons (there have been instances where actions are filed in far-away places in the hope the other party won’t bother to go to such a place and contest the action).In such situations, if the other party opts to, he or she can challenge the jurisdiction of court and seek a dismissal of the action. In such instances proof of residence becomes important.
Q: What are some of the ‘risk’ factors in a divorce such as pre-marital pregnancy, marrying at a young age, and what implications will such factors have on the divorce?
If ‘marrying at a young age’, a young age would mean marriage before the age of marriage (i.e., 18 years) then such marriage is a nullity. But a marriage after one attains the age of marriage has no impact on the marriage.
Similarly, pre-marital pregnancy has no bearing on the legality of a marriage or a bearing on the breakdown of the marriage leading to divorce (except may be where the wife’s pregnancy was unknown to the husband at the time of marriage and where the father of the unborn child is not the said husband).
There are plenty of instances of young couples
having successful marriages and those entering into marriage at an older age having marital problems. Thus, age of marriage is not necessarily linked to a breakdown of marriage.
Q: If the couple are apart for two to seven years can a divorce be obtained without going through the whole legal procedure?
This is a false belief. The Marriage Registration Ordinance has set out the grounds of divorce and those are the only grounds of divorce available in law to a party to obtain a divorce. There is in fact provision in the Civil Procedure Code (at Section 608(2)(b) thereof) (which was introduced as an amendment to the code) to seek a divorce after a separation a mensa et thoro (that too is an order for separation given by court – not merely being separated physically). However, Courts have interpreted that the Civil Procedure Code (which sets out the procedure in civil actions) cannot expand the ‘grounds of divorce’ which are set out in the Marriage Registration Ordinance. Vide the judgement in Tennakoon Vs. Tennakoon reported in 1984 (2) SLR 217.
Q: What is an annulment of the marriage?
Annulment of a marriage is (under section 607 of the Civil Procedure Code) where one can get a declaration that there was no marriage at all (or that there could not have been a marriage)- i.e, a nullity of the marriage. This is different to a divorce where the fact of marriage (registration) is admitted but subsequently one moves for a divorce on one of the grounds of divorce to dissolve a marriage.
You may ask for a decree of nullity of marriage if your marriage has no legal validity due to it being contracted in a manner contravening the provisions of the law. It is then considered a marriage that is void in law.
In the case of an application for annulment (or nullity of marriage) you pray that the marriage (or registration) could not have legally taken place as there are legal impediments such as one party already being married (a party cannot contract a second marriage unless the existing marriage is dissolved by a divorce or the death of the other spouse). In such instance, in addition to being a ground for annulment of the marriage, the guilty party- i.e., the party who contracted the second marriage without the first one being dissolved - becomes liable for bigamy (which is a criminal offence punishable by law).
Other grounds include marriage of a minor (a person under 18), marriages within prohibited degrees of marriage (such as a marriage between a parent and child, marriages between siblings etc.)
Q: Can a divorce be solved ‘amicably’ or without going to court?
Unfortunately no. A court decree is a must in order to dissolve a marriage. Even if the two parties are agreeable on the dissolution of marriage, they still have to go through the process of court case. These are known as ‘amicable divorces’ or ‘uncontested divorces’ and take relatively a short period of time (a few months as opposed to years in contested divorce cases).
In Sri Lanka, presently, only fault-based divorces are recognised although there have been and still are attempts to introduce the ground of irreconcilable differences as a basis for divorce which would allow the parties to separate without having to allege some matrimonial fault on the part of either spouse in order to get a divorce.
Therefore, presently, you will have to go to courts to get a divorce. Often what happens is that even if it is in reality an amicable separation couples allege some fault on the part of either party in order to have a ground of divorce in the application and the other party does not contest the said allegation and thereafter the decree of divorce is entered on that basis.
Q: Whilst an exact time frame cannot be given approximately how long will it take for a divorce to go through both if it is uncontested and contested?
It depends in the case load of each District Court. If the case load is more, it can take a few more months than a District Court with fewer cases. But generally, uncontested cases can be concluded between six to eight months.
