DIVORCE LAWS
The Marriage Registration Ordinance and the Civil Procedure Code constitute the general law on divorce.485 The provisions of the ordinance firmly establish divorce as faultbased and case law has reaffirmed this concept.
Grounds for divorce under the ordinance are the following:
adultery;
malicious desertion; and
incurable impotence at the time of marriage.
Cruelty is not a ground for divorce, although it may be a factor in determining malicious desertion. Physical illtreatment per se is also not a ground for divorce under the general law, but it is a cause for legal separation. In cases of adultery,courts have required proof beyond reasonable doubt as the standard of proof;they also have required the specification of the date and place of the act. An aggrieved spouse may recover damages from the person with whom adultery is committed. Malicious desertion has been judicially defined as "the deliberate and unconscientious,definite and final repudiation of the obligations of the marriage state … 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 recognizes constructive desertion,whereby the innocent spouse is forced to leave because of the behavior of the other spouse.
In addition to the grounds for divorce under the Marriage Registration Ordinance, the Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or, notwithstanding such decree,where there has been a separation a mensa et thoro (from bed and board) for seven years.492 However, courts have not been consistent in applying this provision,and the current law holds that separation alone is an insufficient ground for divorce.493 The general law on divorce as it stands is thus firmly fault based. However, the law is currently under scrutiny and a draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration.
LAWS GOVERNING KANDYAN SINHALESE
Persons subject to Kandyan law may be married under the Marriage Registration Ordinance or the 1952 Kandyan Marriage and Divorce Act.
Pursuant to a 1995 amendment to the Kandyan Marriage and Divorce Act, the minimum age of marriage was raised to 18 for both sexes. Marriages in violation of this age requirement are void 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 related individuals. It renders a second marriage invalid if the first is not legally dissolved. As opposed to the general law's lack of a registration requirement, registration is a crucial aspect of the act. The consequences flowing from a Kandyan marriage depend on whether the marriage is contracted in diga or binna. In a diga marriage, which derives from a patriarchal system, the bridegroom brings his bride to his own house or that of his parents,and she becomes a member of his family for the duration of the marriage.466 In a binna marriage, which is perhaps older in origin and derives from a matriarchal system, the husband is brought to the house of his wife or her family.
The Kandyan Marriage and Divorce Act governs divorce among only those Kandyans married under the act. The act recognizes some differing grounds of divorce for men and women. Divorce may be sought on the following grounds:
adultery by the wife;
adultery by the husband, coupled with incest or gross cruelty;
continued and complete desertion for two years;
inability to live together, of which actual separation from bed and board for one year is the test; and
mutual consent.
Under the act, an application for divorce is made to the district registrar,who may use discretion in granting or refusing to grant the divorce. The Marriage Registration Ordinance governs divorce between Kandyans who choose to be married under the general law.
