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 marriage 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. To dissolve a marriage under the 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, 1. Adultery after marriage; 2. Malicious desertion; and 3. 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 a 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 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 the 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 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 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 THE 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 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 an 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 a 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 immovable property to give effect to a judgement which orders the payment of alimony. Law does not distinguish between ancestral property or property acquired by other manners, about 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 has a lesser income can seek monies from the other irrespective of who is at fault (matrimonial fault).

Similarly, there is another provision to seek the ‘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 if the party ordered to pay does not follow the order of the 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 about the custody of minor children – unless it would be against the best interest of the child or children for such parents to continue having custody. If a parent would have an undesirable or negative influence on the child (because of such parent's 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 conditions.

The 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 the court. For this reason, the court always looks into what is in the best interest of the child. Where custody of children is concerned, two types of actions 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 the 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 vary depending on the age of the child. However, in considering all these applications, the court will consider the best interest of the child.

By Kshalini Nonis