Features
Law and marriage
‘Law is Light’ is a series of trilingual legal discussions to shed light on the law. The Latin maxim ‘ignorantia legis neminem excusat’ translates to ignorance 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 sixth discussion, the programme focused on ‘Laws on Marriage’ to provide an understanding of the rights and duties of individuals.
The discussion featured Attorney-at-Law Nisal Kohona, the Chairman of Veritas Academia
1. What is marriage according to law? What are the laws pertaining to different marriages. Marriage is a contract made in conjunction with the law, where a free man and a free woman reciprocally engage to live in the union that exists between husband and wife.The Sri Lankan General Law of marriage has been considerably influenced by Roman Dutch Law (RDL) and the English law. The Marriage Registration Ordinance (MRO) no.19 of 1907 states the laws pertaining to marriage under general law. The Ordinance applies to marriages between individuals of different ethnic and religious communities. Kandyan Sinhalese may choose to be governed by the General Law or Kandyan Law. The ordinance does not govern marriages contracted between Muslims as the provisions of MRO do not apply.
2. What are the types of valid marriage? Registered marriage: In terms of General Law (MRO) any party other than citizens who follow the Muslim faith can enter into a marriage under this ordinance as stated in the preamble.The Registrar shall follow the steps stated in terms of S.23 to S.36 of the MRO. The issuance of the certificate of marriage is given in Section 26 of the MRO. Thereupon a marriage under MRO will be constituted as validSection 23 (1) – Must check if the parties have resided in Sri Lanka for ten days and one of the parties may give notice to the registrar of the division in which they have dwelt.S. 23 (2) – If not within the same division, must give notice to the registrarS.23 (3) – If one party is not residing in SL, the other party must give noticeS.23 (4) – If neither party is a resident of SL, notice shall be given and such party must reside in Sri Lanka for not less than four days prior to the marriage.
S.25 – After receiving such notices, the registrar shall enter the details in the ‘marriage notice book’ and such is considered to be publication of the notice and then the registrar shall issue the certificate of marriage in terms of Section 26.Customary marriages: The courts have recognized customary marriages contracted according to customary rites and practices. If all the essentials of the customary marriage are in conformity it is possible to contract a valid marriage outside the purview of the statute.
3. Is registering the marriage a vital requirement?Registration of marriage is not mandatory under the ordinance. An entry made in the marriage register is the best evidence of the marriage. The courts do consider the information submitted in the registrar book (S. 41 of the Marriage Registration Ordinance).The law recognizes a rebuttable presumption of marriage by habit and repute (cohabitation). Customary marriages, including those of various ethnicities and the rites and rituals they follow, have been accepted as valid despite the fact that they are unregistered.
4. Who can contract a marriage in terms of age, capacity, prohibited degrees of relationship?In terms of Section 15, prior to 1995, for males it was 16 years and for females it was 12 years. However after the amendment act no.18 of 1995, both parties must have completed 18 years. This was affirmed in the case of (Thiyagarajah V Kurukkal (1923) 25 NLR 69). In this case the girl was 11 years and one month when she entered into marriage. The courts held the marriage null and void. (Gunaratnam V Registrar General)S.16 deals with the prohibited degree of marriage in the following situations:a. Where either party is a direct descendent of the otherb. between a sister and a brother (Either half blood or full blood)c. between parents and their step childrenS.18 states that, no marriage is valid where either party has contracted a prior marriage until it has been legally dissolved or declared void. This was affirmed in the case of Hettiarachchi V Hettiarachchi and others (2004) 3 SLR 116.S.17 of MRO states that any marriage or cohabitation between parties standing towards each other in any of the prohibited degree of relationships, shall be deemed to be an offence, and shall be punishable with imprisonment, simple or rigorous, for any period not exceeding one year.
5. What is cohabitation?This is an instance where two parties have been living together as husband and wife and have been recognised as a married couple by their relatives and friends. It is merely based on a presumption until such has been rebutted. Habit refers to the parties living together as husband and wife for a period of time. Repute refers to their acceptance by the society as a married couple. When a man and woman have lived together as husband and wife, the law will presume unless and until the contrary is proved that they were living together in consequence of marriage and not in a state of concubinage.It must be noted that cohabitation by repute and habit is based on a mere presumption and the simple justification that they are living together does not create a valid marriage. (Requires further indication that they lived as a couple). The burden of rebutting the presumption rests on the person who alleges that there was no lawful marriage and they exist as concubines. In Fernando V Dabarera both the parties cohabiting were dead and there was a need to see if such parties were married as there was no evidence of registration of their marriage. The only evidence that existed was the evidence of how they treated each other. Court held marriage by habit and repute could be recognised by law.
The presumption of habit and repute cannot be raised in the case of Kandyan parties. The Kandyan Marriage and Divorce (Amendment) Act (KMDA) specifically states that registration is compulsory under such act and that a marriage which is not registered either under MRO or KMDA is void.
6. What is customary marriage?A customary marriage is a marriage contracted according to traditional custom and recognised by customs of such country. There are no specific legal provisions stated in the MRO as they are mostly recognized by case law. Customary marriages can be conducted according to the rituals usually followed by those of same ethnicities, religion or area.Customary marriages are governed by the customary laws established in Sri Lanka, the KMDA for Kandyans, Muslim Marriage and Divorce Act (MMDA) for Mulism and Tesawalami for Jaffna Tamils. Any other ethnicities can enter into a marriage under the MRO.
7. What are the different marriage laws in Sri Lanka? There are customary laws wherein any party who falls within the ambit or scope of such act, can either enter into a marriage under such customary law which then will be governed pertaining to the custom or if not such party can enter into a marriage under the General Law of MRO.An example is where the KMDA allows any party who falls within the ambit of such act, to register under the MRO as well, but a marriage cannot be valid until such marriage is registered.
8. Can a person choose which law to be married under?
Of course, if the customary act allows any such person who is a follower of such faith to be married and registered under any laws other than such customary laws, then they can do so.There can be instances where the other party entering into a marriage might not fall within the scope of such customary law. Therefore, a need arises for the freedom to select under which law one should register one’s marriage.
Kandyan marriage
1. Pertaining to Kandyan marriage laws, do both individuals have to be Kandyan?The KMDA applies to Kandyan marriages and divorces as stated in the preamble. It allows any Kandyan who was a resident of the Kandyan province, as at 1850, to enter into a marriage under this law, or any person who is a descendent of the said category. Therefore it is important that both parties are deemed Kandyans in order for the KMDA to apply. However, leeway has been given to parties to register their marriage under the KMDA or the MRO.
2. Is registration compulsory for Kandyan?In terms of Section 3 (1) (a), it states that a marriage between persons subject to Kandyan Law, shall be solemnized and registered under this act or under the MRO and Section 3 (1) (b) states that any such marriage which is not so solemnized and registered shall be invalid.Therefore registration is compulsory if either party is entering into a marriage under the KMDA. However, even a Kandyan can still fall within the ambit of the KMDA although registered under the MRO as the KMDA allows such registration.
3. Is one woman marrying more than one man still in practice under Kandyan Law?Kandyan law does not recognize polygamy and polyandry. This will amount to bigamy just as in ordinary law and will amount to a criminal offence.
4. Can a Kandyan opt out of the Kandyan Marriage Act and marry under General Law?
Yes, they can register themselves under the MRO and the marriage will be governed by laws pertaining to marriage and divorce under the MRO.
(Compile y Zeenath Zakir Pro bono Secretary 2020-2021
The complete discussion is available on YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages. The laws are subject to change with future developments by the legislature.)
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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