Divorce beginning not an end

Law is Light is a trilingual legal project to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ingnorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the seventh discussion, the programme focused on “Divorce laws”.

The discussion featured Attorney-at- Law:, Jerusha Crossette-Thambiah, Legal Advisor to the Mayor of Colombo Municipal Council, a Legal Consultant and Gender Practitioner and a lecturer at Cfps Law School

Before we go into the questions, can we address the negative connotation in society on divorce?

Having a stigma is not beneficial to you. Marriage is a contract people willingly get into it, you should be able to willingly get out of it as well. Marriage at its best is a great partnership and a support system but at its worst it is very similar to an abuser and victim dynamic or sometimes even murderer and victim because we see intimate partner violence is one of the highest rates of female murder in Sri Lanka. Divorce is a simple decision to exit a contract.

What is divorce?

Under the General Marriage Ordinance (GMO), divorce is seen as a dissolution of marriage by a competent Court, a contract entered into by a man and a woman.

The grounds for divorce?

There are three grounds upon which divorce can be filed

a) Adultery – is a hard ground to prove as the burden rests on the plaintiff to show that sexual intercourse took place outside marriage.

b) Incurable impotency – It is not about whether you can have children or not, it is about whether you can perform sexually or not and you need to prove that you have taken steps medically and that you are unable to perform sexually. If the other party did not know this at the time of marriage

c) Malicious desertion – leaving the consortium of marriage without just cause. This can happen in two ways: when a spouse leaves the marriage with no intention to return and the other is when the other partner is forced to leave the home due to intolerable behaviour.

Can a couple get divorced on mutual consent?

Even though international law provided for it, we don’t have a written law for it. It was proposed in the Matrimonial Causes Act, which is still at a Bill stage. That has not been passed yet.

We have a faster way “non-contested divorce” where one party files once you have agreed that you no longer want to be together and the other person doesn’t contest it.

But in our personal laws, the KMDA and MMDA seem more progressive.

Having two personal laws that have a mutual consent as a ground for divorce, why is the general law not accommodating it?

This is because personal laws are based on our culture and our culture was quite progressive in the sense that they don’t want to trap someone in a relationship anymore. Whereas the general law is based on British principals and the English law is based on the Bible. In it there is an area that believes that divorce is hated by God.

At present, the English law has progressed and they have mutual consent.

What is the procedure of application for a divorce?

You meet a lawyer and file a plaint and attach any proof mainly your marriage certificate, children’s birth certificate and other proof.

Do you get compensated after the divorce?

What we pray for is alimony, which is seen as compensation for a divorce. The party who has been wronged is proving their case and saying – “for living with you for so many years and now you have wronged me matrimonially I want this alimony”. Aside from that there are maintenance orders, financial orders, and property transfer orders. All of these can be received as an order from a Court.

Are these gender neutral?

Yes. Anybody who earns more cannot leave the other destitute. If you can show that one person has a need and the other person is capable of paying it and there is sufficient reason, any gender will be subject to payment.

Do we have the concept of a prenup in Sri Lanka?

We don’t have the exact concept but any contract two people have entered into is accepted. Court will allow it to be followed.

So this is a general contract where you state your terms and conditions by both parties and you’ll agree to abide by it?

Correct Can you give us a few examples of these terms?

If one person has a lot of money or owns a business, that family may want to protect their assets away from this marriage. They will agree on not including that money for the settlement. This is done to safeguard your family wealth. In Tiger Wood’s prenup, his wife had a clause saying, if he cheats on her, she will get a very high payout. And she did.

What are the rights of the parties after a divorce? And during a divorce?

The rights that a party has is, they can ask for spousal maintenance. You can ask for transfer of properties if you are taking care of the children. There can be financial monthly settlements that can be lump sum payments. You can ask for maintenance for your children.

At the end of the divorce, the main things to be decided are things like custody. Who gets legal rights and physical rights based on the best interest for the child.

What are the legal consequences of a divorce?

One is the order on what you get to do with your custody and the other is about redistribution of your property. Your alimony.

How does the general law apply in the case of a foreign national?

If you are living here you come within the jurisdiction of local Courts and you are able to apply for a divorce in this country. The only thing you need to look at is if your marriage registration was done in another country, will this divorce that you get in Sri Lanka be applicable under that law. Sri Lanka does not accept divorces taken place in other countries.

Judicial separation What is judicial separation?

This a ground that is allowed so that people don’t separate or divorce due to the normal stressors of day-to day life and they are given an opportunity to go their separate ways and rethink. They can come back together. You are asking for a right not to cohabit for 2 years. You cannot remarry during this time

What are the grounds for judicial separation?

There are two grounds – 1) the other person has become too intolerable to live with or dangerous to live with and two) the other person is acting in an unlawful manner and they should not be allowed to live together.

Does a judicial separation automatically become the dissolution of marriage after a certain period of time?

No, it is not automatic. After two years the Court will give you an option to file for divorce.

When a person goes through a divorce, they are called a divorcee. What is a person called after a judicial separation?

You will be called a judicially separated person not a divorcee.

Nullity What is Nullity of marriage?

This is a declaration sought from Court that your marriage was never legal to begin with. A nullity is saying that your marriage is so legally wrong or defective that it was never legal in the first place.

What qualifies a marriage as being null and void?

There are two sets of principles:

Void reasons – Minimum age, prohibited degrees (where you marry your relatives or incestual relationships), bigamy (when you get to another person before getting a divorce from your spouse), defects in formality.

Voidable reasons – duress ( where you are forced to marry the person), incurable impotence, mistake, illicit sexual relations (where you have sexual relations out of your marriage but unlike adultery, if the marriage was never consummated with the partner but there is relations outside the marriage), pregnant by a third party ( this is a ground for a woman’s current husband)

Can you remarry after the nullity of marriage?

A divorce accepts that you are released from the marriage. A nullity states that your marriage never legally happened. Therefore you are a single person and you have the right to remarry.

(Compiled by Zeenath Zakir, Pro bono Secretary 2020-2021

The complete discussion is available on our YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.

These are laws that are subject to change with future developments by the Legislature)