Justice Ministry mulls relaxing divorce laws
Committee proposes reforms to Marriage Ordinance
By Pamodi Waravita
The Committee appointed to propose recommendations to reform the Marriage Registration Ordinance, No. 19 of 1907, pertaining to marriage, divorce, and the custody of children, has recommended less stringent laws on the grounds for obtaining a divorce, and the Justice Ministry is currently considering these proposals.
The report which was submitted to Justice Minister President’s Counsel (PC) M.U.M. Ali Sabry yesterday (28), has proposed that it should be made possible for a divorce be obtained by either party to a marriage, or on the mutual agreement of parties, if the marriage has reached a state of disintegration where there is no reasonable prospect of it being restored.
However, the relevant court has been granted the right to facilitate reconciliation between the parties to prevent hasty decisions to terminate marriages, in the face of reasonable possibility through counselling, treatment, or reflection.
The Committee has also recognised the right of one party to the marriage to initiate a divorce upon presumption of death of the other party.
According to the current Marriage Registration Ordinance, the dissolution of marriage can happen under the following three conditions: “(1) No marriage shall be dissolved during the lifetime of the parties except by judgment of divorce a vinculo matrimonii pronounced in some competent court, (2) Such judgment shall be founded either on the ground of adultery subsequent to marriage, or of malicious desertion, or of incurable impotence at the time of such marriage, (3) Every court in Sri Lanka having matrimonial jurisdiction is hereby declared competent to dissolve a marriage on any such ground.”
The Justice Ministry has noted that the country’s current general marriage-related law hails from the colonial time period, which even the UK has ceased to use since 1969 and thus, is in dire need of reform.
“The family law of Sri Lanka has not changed much in over 50 years. Although reforming it has been tried before, it hasn’t been successful. Much of the world has moved forward in this area of law and we have been in the same place which is completely out of touch with what the law needs to be today. We are hoping to give effect to these recommendations as they have been overdue by decades,” Justice Ministry Co-ordinating Secretary Shamir Zavahir, who also oversees the justice sector reforms programme, told The Morning.
Furthermore, the proposed law seeks to ensure that orders that are obtained regarding children must be in their best interests, especially in terms of their welfare.
Currently, the law in Sri Lanka does not recognise instances of Sri Lankans living abroad who may get decrees of divorce, annulment, and judicial separation. However, the proposed laws allow for this recognition in instances of divorces and annulments obtained outside of a court of law.
The Advisory Committee sought ideas and recommendations from reports containing reviews and reforms of the family law conducted since 1956, including the Draft Matrimonial Causes Bill of 2007, drafted by the Law Commission of Sri Lanka under the chairmanship of Nihal Jayamanne PC, the Report on the Reform of Family Law in 2010 which was prepared by a committee of experts led by Prof. Savitri Goonesekere, the Report on Matrimonial Causes drafted by the Law Commission under the chairmanship of Romesh de Silva PC, several national policy reports pertaining to children, and the proposed Draft Civil Procedure Code (Amendment) Act prepared by the Attorney General’s Department in April 2021. The Committee has also conducted a comparative study of the matrimonial laws in the UK, South Africa, India, and Singapore.
The Advisory Committee was chaired by Kushan De Alwis PC, convened by Mokshini Jayamanne, and was composed of 12 members. The recommendations have been limited to the general law and have not included the Kandyan law or the Muslim Marriage and Divorce Act.