How divorce laws compel couples to remain in unhappy marriages

It is not about finding the right person but finding a life companion who is willing to walk alongside you through all trials and tribulations. Not everyone gets it right the first time but we need to make provision to evaluate where we stand for a better life

Marriage is a beautiful union between two individuals that unite two families. The failure of such a bond is a result of incompatibility. Marriages are rushed due to social and material reasons and not at the pace of the individual’s interests. It is not about finding the right person but finding a life companion who is willing to walk alongside you through all trials and tribulations. Not everyone gets it right the first time but we need to make provision to evaluate where we stand for a better life.   

Divorce is perceived as something distasteful by society. We often overlook the need to have it as an option when the matrimonial bond becomes stagnant or worse; abusive. This life is too short to stagnate with individuals who do not add to your growth and add value to your human experience. The General Law pertaining to divorce has been very restrictive over the years. This case will elaborate on the restriction and the need for reform.   

Gomes v Gomes was decided in 2018, a landmark judgement by the Supreme Court of Sri Lanka which discussed the grounds for divorce in our country. This article intends to simplify the facts of the case and judgement.   
The wife filed for divorce on the ground of malicious desertion. At the time the wife was 40 years of age and the husband was 43. They got married in 1983 and had four children – two sons and two daughters. Their matrimonial home was the husband’s parental house at Gomes Path, in Colombo 4.   

It was stated by the wife, from April 1995 onwards, disagreements between the couple became frequent and the husband and his mother harassed her. She claimed, the husband had failed in his duties as a father and mistreated the children. He often threatened the wife with divorce and persisted in her leaving the matrimonial home. In the interest of the children, she felt it important to continue the marriage.   

On the 07th of July 2001, the wife stated that, the husband assaulted her in an inhuman manner. He had ordered her to leave the matrimonial house and threatened to pour kerosene and burn her, if she failed to do so. This incident compelled her to terminate matrimonial relations. The husband denied all allegations made against him.   
In the complaint, the wife had mentioned that her husband “slammed her head against the wall, hit her with a torch and broken some furniture”. When the case was heard in the District Court, the learned Judge had observed that, the wife had not claimed the same when she was questioned in court. Despite her stating that the husband had tried to set her on fire by pouring kerosene, the learned Judge noted that, both the husband and wife had gone to the police station together and returned the same. The wife had not requested the police to take any action in pursuance of her allegations of threats, assault and an attempt to set her on fire. 

Quoting from the judgement: 

Section 19 (1) of the Marriage Registration Ordinance No. 19 of 1907, as amended, lists “malicious desertion” as one of the three grounds on which a decree of divorce a vinculo matrimonii may be entered by a competent court. It is equally well known that, “malicious desertion” may take place either by way of simple malicious desertion or by way of constructive malicious desertion. 

Simple malicious desertion or, as it is sometimes called, actual malicious desertion is where the spouse who is alleged to be guilty of malicious desertion physically separates from the matrimonial home or terminates matrimonial consortium, with the intention of deserting his or her spouse.

…. the plaintiff did not call the members of the domestic staff or her children to testify regarding the alleged incident although she said that they had been present at the time. The plaintiff did not give any explanation for not calling these witnesses. The plaintiff did not produce any medical or photographic evidence which would show that she had been assaulted, even though it is likely that there would have been tell-tale signs if she had been assaulted in the manner she claimed in the plaint.

… In the light of all these facts and circumstances, the learned trial judge held that the plaintiff had failed to prove that the alleged incident which she claimed as the ground on which the defendant is guilty of constructive malicious desertion and, accordingly, dismissed the plaintiff’s case. The High Court affirmed this determination
The Supreme Court observed, there was no conclusive evidence of the incident. The husband and wife continued to live in the same house and continued to engage in running the household. The appeal was dismissed, as the plaintiff had failed to establish that the defendant was guilty of constructive malicious desertion.   

In the latter part of the judgement, it was observed, this was a sad predicament to have two individuals stagnate in a bitter union. “The outcome is that, the wife must be denied the divorce which she has sought for 17 years and be compelled to remain in what she believes is an unhappy and unfulfilling marriage. The husband is left only with what appears to be the pyrrhic victory of an empty marriage.”

The importance of this case can be highlighted in the following excerpt of the judgement,   
It seems to me that, the restriction of the grounds on which a divorce may be granted to the solely `fault based’ grounds set out in section 19 of the Marriage Registration Ordinance, is alien to our traditional laws which allowed for divorce to be granted on the ground of the breakdown of a marriage or upon consensus - vide: section 32 of the Kandyan Marriage and Divorce Act No. 44 of 1952, as amended and sections 27 and 28 of the Muslim Marriage and Divorce Act No. 13 of 1951, as amended 20 together with the provision under Islamic Law for a divorce by mutual consent [Mubarat]. 

Yet, it appears that, these initially alien ideas based on European theological values which were introduced by the colonial powers, have embedded themselves into the value system of this country during the time Ceylon [as Sri Lanka then was] was governed by these colonial powers and persist unchanged, to this day and, indeed, are often espoused as our very own traditional values. 

However, the Law in England, which enabled a divorce only on `fault based’ grounds from the time of the passing of the Matrimonial Causes Act of 1857, was changed in 1969 with the enactment of the Divorce Reform Act of 1969, later replaced with the Matrimonial Causes Act of 1973, both of which provides for divorce on the ground that a marriage has irretrievably broken down. It is telling that it was none other than the Archbishop of Canterbury who appointed the Study Group which submitted the recommendations set out in the “Putting Asunder: A Divorce Law for Contemporary Society” Report which led to the enactment of the Divorce Reform Act of 1969.