The Sri Lankan General Law of Marriage

8/13/2019 The Sri Lankan General Law of Marriage

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The Sri Lankan General Law of

Marriage: Dutch, Victorian, or

Indigenous ?Sharya Scharenguivel

aculty of Law !niversity of "olo#$o%

&ackground

The Sri Lankan General Law of marriage has been considerably influenced by the Roman

Dutch law and the English law. To a large extent the law remains unreformed and is inmany ways not compatible with modern notions relating to marriage and the termination

of marriage. The General law is accessed not only by the low country Sinhala people whoas a result of our colonial history do not hae a legally recogni!ed customary law but alsoby Tamils "whether they are goerned by the Thesawalamai or not# and by $andyan who

hae a choice of marrying under the $andyan law or the General law. %n relation to the

Tamils goerned by the Thesawalamai by and large the Thesawalamai impacts only onproperty and succession rights of married persons. The re&uirements relating to capacity

to marry' guardianship and custody is goerned by the General Law.

Methodology

(spects of the Sri Lankan law of marriage will be examined with a iew to ascertainingwhether the General Law of marriage is Dutch' )ictorian or indigenous. *e will also

consider whether the lack of agitation for reform can be attributed to the fact that the lawaccords with our current sense of alues and is therefore indigenous.

+arriage will be looked at from the point of iew of contracting a marriage' the incidentsarising out of marriage and terminating a marriage. %n each of these spheres it will be

noted that the marriage laws are largely Dutch or )ictorian. The Roman Dutch Law

relating to marriage was largely a seenteenth or eighteenth century law. Some of itsinherent features must be understood in the context of that period and its releance today

must be &uestioned. This system saw the woman as the subordinate partner in the

marriage and ested both decisions in relation to the marriage and children in the male

spouse. ( corollary was that of seeing the husband as the primary financial supporter of

the marriage. This was reinforced by the early ,ritish colonial legislation which imposedcriminal liability on a husband who failed to support the wife.The receied English law

of the eighteenth century and the nineteenth century was concerned with theemancipation of the married woman. %t sought to gie the married woman control oer

her separate property and a distinct legal personality. -et the issue that confronts the Sri

legal system today is whether the married woman has achieed substantial e&uality and insome instances whether she has been denied both formal and substantial e&uality. Does

she for example hae the same opportunities to engage in economic actiities which will


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generate the same type of income as is generated by her husband/ 0r does her role as

care gier of the children deprie her of those opportunities. %s the separate property

regime which was a response to protecting the earnings of a select group of women in1th century England an appropriate model for Sri Lanka today/ Should Sri Lanka be

looking at some indigenous concepts in formulating her laws relating to matrimonial

property/ These are some of the issues which will be looked at in this paper.

Diorce in the General Law is based on the ideal that marriage is a life long commitmentwhich can only be dissoled exceptionally on the proof of a serious matrimonial fault.

Suspension of the marriage is a recogni!ed form of relief and the iability of the marriage

is not a consideration. The 2rocedural laws are adersarial and the process is essentiallyacrimonious where success will depend on whether one party has succeeded in proing

that the other party has committed a serious matrimonial fault. The uncontested diorce is

a response to this fault based system where one party agrees not to contest the actionwhich then results in the court holding that the alleged matrimonial fault has been

committed. %n essence this is a diorce by mutual consent where the property and

custodial conse&uences hae been determined out of court and the courts role is a formalone. 0nce again the &uestion that has to be asked is whether the indigenous systems

which deemphasi!e fault and stress on conciliatory or mediatory measures are better

options.

'utco#e

The expected out come of this research is that of demonstrating that the law relating to

marriage and diorce in the General Law is based on anti&uated notions of marriage and

does not accord with current notions of marriage as a relationship between e&uals. 3or

does it accord with the well accepted iew that a non functional marriage marriage mustbe set aside with minimum distress to the parties.

Legislation and case law will be the principal sources that will be examined

4ommissioned reports and other reports will be examined and commented on wheneerappropriate.

(eferences

Cretney S Family law in the Twentieth Century (Oxford 2003)

Cretney and Proberts Family law (London 200)!a"y #n #$$ount of the %nterior of Ceylon and its %nhabitants (&'2&)

Sa"itri ooneseere *uslim Personal Law in Sri Lana (*+,#F 2000)

ooneseere The Le-al Status of the Female in the Sri Lana law of Family relations

(Colombo &'0)*S .aldeen The *uslim law of *arria-e !i"or$e and *aintenan$e in Sri Lana /(Famys

&0)

Chulani odiara *uslim Family law %n Sri Lana (*+,#F &)1adaraa Le-al System of Ceylon in its istori$al Settin-( Leiden &42)

1a-endra *atrimonial Pro5erty and ender %ne6uality (Colombo 200')

Sawyers7 !i-est on the andyan law (&'28) (re5rint &2& Telli5allai Ceylon))

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Tambiah9+ The Laws and Customs of the Tamils of .affna (&st ed Times of Ceylon)

+ Tambiah Sinhala Law and Custom ( Colombo &8')

Marriage in Sri Lanka

The minimum age of marriage in Sri Lanka is 18. Americans planning to marry in SriLanka should be prepared to provide the following:

riginal !irth "ertificate

#alid $assport

%f either party was previously married& an original divorce decree

%f either party was widowed& an original death certificate

Americans should also be aware that Sri Lankan law re'uires foreigners to spend at

least four days (three nights) in Sri Lanka prior to notifying a marriage registrar ofintended marriage. nce the registrar has been notified of the intent to wed& there is

an additional waiting period of at least fourteen days prior to the date of the actualmarriage registration.

The local marriage registrar may grant special permission for same day marriages insome circumstances. American citi*ens wishing to marry under the special

permission must still prove that they have been physically present in Sri Lanka atleast four days (three nights) prior to the marriage. They may apply for the same

day marriage registration at the marriage registrar+s office.

To be legally recogni*ed under Sri Lankan law& marriages must be registered with a

,arriage -egistrars ffice within your area of residence or the ivisional Secretariatof your area.

)MIL* L)+S S(I L)-)

The body of law relating to marriage consists of the general law' customary law and

personal law. Tamils are goerned by the general law in most marriage6related matters'whereas $andyan Sinhalese can choose to be goerned by the general law or their

customary laws. +uslims are goerned by +uslim personal law.

M)((I)G. L)+ S(I L)-)

The 789 +arriage Registration 0rdinance constitutes the general law on marriage in Sri

Lanka. The ordinance applies to marriage between Tamils and between indiiduals of

differing ethic and religious communities. $andyan Sinhalese may choose to be goernedby the general law or $andyan law. The ordinance does not goern marriages contracted

between +uslims.

M)((I)G. )G. (./!I(.M.TS

2ursuant to a 77: amendment to the ordinance' the minimum age of marriage was raised

to 1 for both men and women. ( subse&uent proision' howeer' authori!es parents toconsent to a marriage inoling a minor. %f a parent unreasonably withholds consent' a

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court may authori!e the marriage. 4ourts hae held' howeer' that a parentbest eidence> of the marriage. Thus' customary

marriages' including those solemni!ed according to =indu' ,uddhist and 4hristian ritesand rituals' hae been accepted as alid despite the fact that they are unregistered. The

law recogni!es a rebuttable presumption of marriage by habit and repute. Thus' upon

proof that a man and woman hae cohabited as husband and wife' the law presumes that

they are liing together in a alid marriage' unless the contrary is proed. 4ourts haeemphasi!ed that cohabitation does not conclusiely proe the fact of marriage' thus

emphasi!ing the rebuttable nature of the presumption.

&I), DIG) M)((I)G.S

*hether the marriage is binna or diga depends on the intention of the parties. ( marriage

is presumed to be diga if there is no eidence as to its character. The act specifies that aalid $andyan marriage renders legitimate any children born to the parties prior to such a

marriage. This means that any premarital offspring are automatically legitimi!ed if the

parents subse&uently enter into a alid $andyan marriage. 4hildren so legitimi!ed are

entitled to the same rights as those born subse&uent to a marriage.

(.L.V)T L)+S )D 0'LI"I.S

. +arriage Registration 0rdinance' 789? and +arriage Registration "(mendment#(ct' 77:

5. $andyan +arriage and Diorce (ct' 7:5? and $andyan +arriage and Diorce

"(mendment# (ct' 77:;. +uslim +arriage and Diorce (ct' 7:

@. 4iil 2rocedure 4ode' 117

:. +aintenance (ct' 777

A. (doption of 4hildren 0rdinance' 7@? amended in 775

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M!SLIM M)((I)G. )D DIV'(". )"T

The +uslim +arriage and Diorce (ct goerns marriage between +uslim parties. The

act specifies some re&uirements for a alid marriage? those re&uirements left unspecifiedare goerned by the law of the sect to which the parties belong. The act does not specify a

minimum age for alid marriage.

=oweer' where a marriage inoles a girl below age 5' the act re&uires consent of theBua!i "similar to a Cudicial officer' though legal training is not re&uired# to register the

marriage.

(lso'under %slamic law'a minor girl has the right to repudiate the marriage upon attaining

puberty. (lthough courts hae recogni!ed this right' the issue of whether it is an

unconditional right or aailable only when the marriage can be proed to be against the

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L)+S G'V.(IG T)MILS

The +arriage Registration 0rdinance goerns marriage among Tamils.

DIV'(". L)+S

The +arriage Registration 0rdinance and the 4iil 2rocedure 4ode constitute the general

law on diorce.@1: The proisions of the ordinance firmly establish diorce as faultbased

and case law has reaffirmed this concept.Grounds for diorce under the ordinance are the following

. adultery?

5. malicious desertion? and

;. incurable impotence at the time of marriage.

4ruelty is not a ground for diorce' although it may be a factor in determining malicious

desertion. 2hysical illtreatment per se is also not a ground for diorce under the general

law' but it is a cause for legal separation. %n cases of adultery'courts hae re&uired proofbeyond reasonable doubt as the standard of proof?they also hae re&uired the

specification of the date and place of the act. (n aggrieed spouse may recoer damages

from the person with whom adultery is committed. +alicious desertion has been

Cudicially defined as >the deliberate and unconscientious'definite and final repudiation ofthe obligations of the marriage state F and it clearly implies something in the nature of a

wicked mind.> The intent to terminate the marital relationship and the actual termination

of cohabitation are both necessary elements. The law also recogni!es constructiedesertion'whereby the innocent spouse is forced to leae because of the behaior of the

other spouse.

%n addition to the grounds for diorce under the +arriage Registration 0rdinance' the

4iil 2rocedure 4ode permits either spouse to petition for dissolution of marriage twoyears from the date of a decree of Cudicial separation or' notwithstanding such

decree'where there has been a separation a mensa et thoro "from bed and board# for seen

years.@75 =oweer' courts hae not been consistent in applying this proision'and thecurrent law holds that separation alone is an insufficient ground for diorce.@7; The

general law on diorce as it stands is thus firmly fault based. =oweer' the law is

currently under scrutiny and a draft +atrimonial 4auses (ct' which explicitly introducesirretrieable breakdown of marriage as a new ground of diorce' is under consideration.

L)+S G'V.(IG -)D*) SI1)L.S.

2ersons subCect to $andyan law may be married under the +arriage Registration

0rdinance or the 7:5 $andyan +arriage and Diorce (ct.

2ursuant to a 77: amendment to the $andyan +arriage and Diorce (ct' the minimumage of marriage was raised to 1 for both sexes. +arriages in iolation of this age

re&uirement are oid unless the parties cohabit as husband and wife for one year after

attaining the legal age' or if a child is born within marriage before either party has

attained the legal age. The act prohibits marriage between certain closely relatedindiiduals. %t renders a second marriage inalid if the first is not legally dissoled. (s

opposed to the general law


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aspect of the act. The conse&uences flowing from a $andyan marriage depend on

whether the marriage is contracted in diga or binna. %n a diga marriage' which deries

from a patriarchal system' the bridegroom brings his bride to his own house or that of hisparents'and she becomes a member of his family for the duration of the marriage.@AA %n a

binna marriage' which is perhaps older in origin and deries from a matriarchal system'

the husband is brought to the house of his wife or her family.

The $andyan +arriage and Diorce (ct goerns diorce among only those $andyans

married under the act. The act recogni!es some differing grounds of diorce for men andwomen. Diorce may be sought on the following grounds

. adultery by the wife?

5. adultery by the husband' coupled with incest or gross cruelty?

;. continued and complete desertion for two years?@. inability to lie together' of which actual separation from bed and board for one

year is the test? and

:. mutual consent.

nder the act' an application for diorce is made to the district registrar'who may use

discretion in granting or refusing to grant the diorce. The +arriage Registration

0rdinance goerns diorce between $andyans who choose to be married under the

general law.

L)+S G'V.(IG M!SLIMS

+uslim personal law recogni!es different grounds of diorce for the husband and thewife? spouses do not hae e&ual rights to diorce. %t also recogni!es grounds for diorce

on fault6 and non6fault6based grounds. The rights and duties of the parties are determined

according to the sect to which the person belongs.

Diorce by the husband is known as talak. This is the >repudiation of the marital tie bythe unilateral act of the husband'> by making a pronouncement that the marriage is

dissoled.

The husband may pronounce talak without following any prescribed Cudicial procedures.urthermore' the pronouncement need not be made in the presence of or communicated

to the wife.

The board of Bua!is and the Supreme 4ourt share the iew that pronouncement of talakneed not be communicated to the wife.

The +uslim +arriage and Diorce (ct specifies the procedure in the eent of diorce by

the husband. These rules are comparable to the most progressie legislation on talak inthe +uslim world.

( significant feature of the procedure is the duty of the Bua!i' who receies notice of the

intention to pronounce talak' to attempt to reconcile the parties with the assistance ofrelaties and elders of the community.

Diorce by the wife is known as fasah diorce in +uslim law' and although the term is

not used in Sri Lanka'the +uslim +arriage and Diorce (ct recogni!es the right of the

wife to diorce on the grounds identified with fasah diorce.The aailability and scope of fasah diorce depends on the sect to which the parties

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belong.

+aliki law' which applies to the +aliki sect' is the most liberal in this regard.

The grounds aailable to the wife for fasah diorce include

. failure or inability of the husband to proide support?

5. malicious desertion?;. cruelty and ill6treatment?

@. >continued dissension and &uarrels>?

:. husband


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Laws goerning $andyan Sinhalese The $andyan +arriage and Diorce (ct does not

include Cudicial separation as matrimonial remedy. =oweer' $andyan Sinhalese married

under the general law may seek Cudicial separation under the 4iil 2rocedure 4ode.Lawsgoerning +uslims The concept of Cudicial separation does not exist under +uslim law.

Laws goerning Tamils The 4iil 2rocedure 4ode applies to Tamils in matters of Cudicialseparation.

M)IT.)". )D S!00'(T L)+S

The 777 +aintenance (ct is the general law on maintenance during marriage.

%nstituting proceedings under the act does not preclude a person from also initiating a

ciil action for maintenance' in which case common law principles of maintenance wouldapply.

The act re&uires any spouse with sufficient means to maintain the other spouse' if such

indiidual is unable to maintain him or herself.

The law in place prior to the act imposed a duty of maintenance only on a husband.

(n order for maintenance will not be awarded if the applicant spouse is liing in adultery

or both spouses are liing separately by mutual consent..

This constitutes a departure from the common law' which proides that the obligation of

support continues during a period of consensual separation.

%n cases where a wife is precluded from receiing an award for maintenance under the

+aintenance (ct' she may still bring a ciil action to enforce her husband


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Laws goerning $andyan Sinhalese The +aintenance (ct applies to $andyans in matters

of maintenance obligations during marriage. The $andyan +arriage and Diorce (ct

includes proisions on maintenance in cases of diorce. The act proides that a districtregistrar' in granting the dissolution of a marriage'may order the husband to pay a certain

amount of money or proide other support for the maintenance of his wife' children or

both. The act does not stipulate what factors the registrar should take into account inmaking the award' although such factors generally include the husbandlife' health and morals> of the children.( mother who seeks custody therefore has the onus of displacing the father alue system' giing primacy to maintaining family links oer

enhancing the mental health of the child. Recently' howeer' courts hae also considered

the child


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4hildren 0rdinance' which proides that adoption will only be permitted for the >welfare

of the child.> The ordinance also takes into consideration the adoptee


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5. +atrimonial Rights and %nheritance 'rdinance, 3789

;. $andyan Law Declaration and (mendment 'rdinance, 3467

@. +uslim %ntestate Succession 'rdinance, 3463:. +atrimonial Rights and %nheritance 2affna;'rdinance, 3433

A. Land Deelopment 'rdinance, 346 0ther related constitutionally protected rights include thoseto freedom of association and freedom to form and Coin a trade union.

There are arious laws that proide for paid maternity leae and other maternity benefitsto female employees. The Establishments 4ode stipulates conditions of maternity leae

for employees in the public sector. 2ursuant to goernment regulations passed in 775

and amended in 779' publicsector female employees are entitled to a 56week maternity

leae irrespectie of marital status' cause of pregnancy or duration of employment.+aternity benefits include two daily half6hour nursing breaks for a six6month

period.+aternity leae is aailable for permanent' seasonal and part6time female workers

in the public sector. Two separate laws goern maternity benefits for female workers inthe priate sector. The 7:9 Shop and 0ffice Employees "Regulation of Employment and

Remuneration# (ct applies to workers in shops and offices and permits a 56week

maternity leae for the first two pregnancies and a six6week leae for subse&uent

pregnancies. The 7;7 +aternity ,enefits 0rdinance proides for similar leae' butapplies to female workers in any >trade'>excluding employees coered under the Shop

and 0ffice Employees "Regulation of Employment and Remuneration# (ct and >those

whose employment is of a casual nature.> The ordinance also proides for nursing breaksand the establishment of crIches for female workers with children under age fie.A8@

,oth laws prohibit employers from terminating their female employees on the basis of

pregnancy' confinement or any related illness. Employers may also not gie notice oftermination to a woman while she is on maternity leae. The +aternity ,enefits

0rdinance allows for employers in the estate sector to arrange for the proision of

>alternatie maternity benefits> to their female workers. *omen who refuse to accept thealternatie benefits are not entitled to receie the standard benefits proided under the

ordinance. Studies hae reealed arying degrees of compliance with proisions on

maternity benefits' with some showing signifi6cant noncompliance. =oweer'thegoernment maintains that labor inspections hae failed to reeal noncompliance and that

it has not receied complaints from any person. 4ertain labor legislation excludes or

restricts women from some types of employment. nder the 7;9 +ines "2rohibition of

emale Labour nderground# 0rdinance'women are excluded from working inunderground mines' with some exceptions.

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The 7@5 actories 0rdinance was recently amended to increase the number of oertime

hours women and young persons may work? howeer' such employment may be

prohibited or restricted >if it appears that such oertime employment will preCudiciallyaffect the health of such women or young person.>

ntil amendments were made in 71@ to the 7:A Employment of *omen'-oung2ersons and 4hildren (ct and the Shop and 0ffice Employees "Regulation of

Employment and Remuneration# (ct' women were prohibited from working at night'

subCect to certain exceptions.nder the amended acts' the prohibition was lifted. The *omen


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nder (fghan law' ciil and religious marriage ceremonies may be performed for some

foreigners. (fghans who are dual nationals are treated solely as (fghan under the law.

%t is not possible for a non6+uslim man to marry a +uslim woman in (fghanistan' but itis possible for a +uslim man to marry a non6+uslim' foreign' woman. (dditionally' the

court will not register marriages inoling (fghans who claim not to be +uslim' unlessthe couple consents to a +uslim religious ceremony. (fghan law considers all (fghans

+uslim by default.

Marriage (egistration

oreigners who want to marry in $abul must first register the marriage at the amily

4ourt' located in the $abul GoernorKs =ouse 4ompound. %n the proinces' outside of

$abul' marriages can be registered at the ciil courts.

The couple must appear at the amily 4ourt in $abul with two witnesses and photo

identification "preferably their passports#. *itnesses should also hae photoidentification. %f one of the indiiduals who wish to marry is +uslim' a religious +uslim

ceremony will be performed at the time of registration. %f both indiiduals are foreignersand non6+uslim' a ciil ceremony may be performed. (fter the court ceremony' the

couple is considered married under (fghan law? they may then conduct the family or

religious ceremonycelebration of their choice.

(fter the marriage is registered' the court will issue a marriage certificate upon re&uest.%n $abul' court officials say' it will take about a week to receie the certificate.

(eligious Marriages

%f both or one of the parties are +uslim' the amily 4ourt will register the marriage and

perform the +uslim nekah ceremony. The nekah is comprised of the igaba wa &abul"acceptance agreement# and the khotba.

*hen a +uslim man wants to marry a foreign woman who is non6+uslim and the

woman is not kitabi "of the book' i.e. 4hristian or Mewish#' she must first conert to

%slam. %n either case' the court will only register the marriage religiously' with the nekahceremony.

"ivil Marriages

%f both parties are non6+uslim foreigners' the court will register the marriage by

performing solely the igaba wa &abul or acceptance agreement without the other half ofthe typical +uslim religious ceremony. The court will also seek to apply the regulations

goerning marriage in the couplesK home country. or example' although (fghan law

permits polygamy' (merican men will not be allowed to marry multiple women.

Legal "oncerns

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The (fghan marriage certificate is a legal document in (fghanistan. %f the couple needs

to use it outside (fghanistan' it should be notari!ed at the Embassy or 4onsulate of the

foreign country where the marriage certificate will be used. 2lease read the informationaailable on this website concerningnotarial sericesat the .S. Embassy in $abul.

(ll marriages' ciil or religious' performed outside of (fghanistan are considered alidunder (fghan law. ( legally issued marriage certificate is re&uired as proof. Dual

nationals may need to hae their marriage certificates authenticated at the (fghanEmbassy in the country they were married.

:
http://kabul.usembassy.gov/notarials.htmlhttp://kabul.usembassy.gov/notarials.htmlhttp://kabul.usembassy.gov/notarials.html

The Sri Lankan General Law of Marriage

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