Matrimonial reliefs in Sri Lanka include Annulment of Marriage, Judicial Separation (separation a mensa et thoro) and Divorce (divorce a vinculo matrimonii). Divorce is the commonly used relief among the above mentioned. Marriage and Divorce govern under the statues mentioned below:
|
:Applies to Sinhalese who contracted marriage under the Marriage Registration Ordinance, Tamils including persons governed under the Thesawalami Law, to persons who contracted marriage in a Christian Church, to marriages between different laws and to persons who governed by the General Law.
|
|
: Applies to persons governed by Kandiyan Law. |
 |
: Applies to Muslims in Sri Lanka. |
General Law of Divorce
General Law of divorce in Sri Lanka is fault based and constituted by the Marriage Registration Ordinance. Section 19 of the Ordinance is the main provision and it provides three main points of law. Those are:
- Marriages can only be dissolved by divorce.
- There are three grounds for divorce;
- Adultery subsequent to marriage,
- Malicious desertion,
- Incurable impotency at the time of such marriage.
Adultery subsequent to marriage
According to the Court of Appeal decision in Pushpakumara V Marmet And Another244 Sri Lanka Law Reports [2003] 2 Sri L.R “As essential ingredient of the matrimonial offence or adultery is that it involves sexual intercourse with a person out of wedlock. “Direct evidence or eye witness evidence of sexual intercourse is very rare in matrimonial actions." …… It is a well-recognized principle of law that direct evidence of adultery is not necessary to prove adultery. It is well accepted that an inference of an act of adultery could be drawn from the circumstances of each case.” Although adultery is not an offence in Sri Lanka, is of Criminal standard proof i.e. beyond reasonable doubt.
In a divorce action where the Adultery is a ground, Adulterer can be made a party to the action.
Malicious Desertion
As per Bertram Chief Justice in Silva V Missinona 1924 New Law Reports Volume 26 Page 113 malicious desertion means “a deliberate and unconscientious, definite, and final repudiation of the obligations of the marriage state.” There must be both an act (factum) of desertion with the intention (animus) to repudiate the matrimonial obligations i.e. sine animo revertendi.
Malicious desertion divides into two categories i.e. direct and constructive.
- Direct malicious desertion is when deserting spouse leaves the matrimonial home
- Constructive malicious desertion is when the innocent spouse is compelled to leave the home permanently as a result of other spouse’s faults.
Incurable impotency at the time of such marriage
Incurable impotency at the time of such marriage is a ground for divorce when one spouse suffering from an incurable impotency and even after the marriage such spouse is unable to have a successful sexual intercourse with the other spouse.
Annulment of Marriage
A contract of marriage is ab initio null and void if such marriage is prohibited by the statutes or contrary to public policy under common law.
Void marriage has no legal recognition or validity and such marriage is null and void when it is in contravention of statutory provisions regarding:
- Capacity of Marriage such as legal age and soundness of mind
- Prohibited degree of relationships between family members
- Entering into a second marriage without legal dissolution of first marriage (Bigamy)
- Knowingly and willfully noncompliance of legal formalities
Under common law, voidable marriage due to duress, mistake or fraud becomes null and void if such marriage is challenged before courts.
Judicial Separation
Courts grant Judicial Separation when a marriage has broken beyond repair and cohabitation is no longer possible.
Two years of Judicial Separation:
Decree of Judicial Separation may convert to a decree of divorce after the laps of two years.
Seven Years of Separation (separation mensa et thoro):
After separation for seven years a party to marriage may apply for a divorce on the ground of separation for seven years.
Such action may be filed by way of summary procedure.
Note: a spouse who seeks divorce under Judicial Separation must also establish a matrimonial fault (i.e. adultery, malicious desertion or incurable impotency) of the other spouse.
Procedure of a Divorce Action
The procedure lies in the Chapter XLII of the Civil Procedure Code including the points mentioned below:
- Divorce action may be filed in the District Court where either spouse resides by way of a Plaint.
- Alleged adulterer (a person outside marriage) can be named as a co-defendant in a divorce action where the Adultery is a ground. Court may be ordered such Adulterer to pay cost if he or she found guilty.
- The Plaintiff has to prove the case.
- When case is proved on balance of probabilities the Court will grant a decree nisi and then three months will be given, to move the decree nisi decree absolute.
- Upon completion of three months, the decree is to be made absolute.
Note:
During and at the conclusion of a divorce trial, the Court may take into consideration other connected matters such as child custody, maintenance, alimony and property rights, etc.
Muslim Law of Divorce
- Muslim divorce law of Sri Lanka is governed by the provisions of the Muslim Marriage and Divorce Act No. 13 of 1951. The Quazi Court has the jurisdiction to hear divorce matters.
- Appeal of such matters shall be heard by the Board of Quazis again which can be challenged in the Supreme Court of Sri Lanka.
