The divorce laws in Sri Lanka are almost entirely based on ‘fault’. There are three main grounds for divorce, and the requirement to prove these strict grounds is partly the reason why it can be difficult to get a divorce in Sri Lanka. So, what are the grounds for divorce in Sri Lanka? How do courts consider child custody and contact issues after divorce? And how are your finances split when your marriage ends? Here we provide answers to these questions and more.
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The divorce laws in Sri Lanka
The divorce laws in Sri Lanka are generally enshrined in the country’s civil law. However, other laws can apply to certain ethnic groups; for example, Sharia law or Kandyan law.
Under civil law, there are three grounds for divorce in Sri Lanka:
- malicious desertion
- incurable impotence at time of marriage.
If you file for divorce citing adultery, you must prove that your spouse had sexual relations with another person while you were married.
While adultery is not a criminal offence in Sri Lanka, you must prove beyond any reasonable doubt that your spouse committed adultery. This may involve the cross-examination of witnesses.
Under Sri Lankan law, ‘malicious desertion’ occurs when you can establish two things:
- that desertion has taken place
- that your spouse intended your marriage to end.
If your spouse leaves the marital home, then you can claim ‘malicious desertion’.
However, if you have been forced to leave your marital home as a result of the actions of your spouse, this is considered ‘constructive malicious desertion’. This can be more difficult to prove as you must evidence that living with your spouse was intolerable.
Incurable impotence at time of marriage
If your spouse cannot consummate your marriage because they were incurably impotent at the time of marriage, you can file for divorce on this basis.
Other divorce laws in Sri Lanka
As well as the Sri Lanka civil laws, other laws can apply to ethnic groups in the country.
Kandyan Marriage and Divorce Act (1952), amended in 1995
This legislation governs only divorce among Kandyans. Here, you can file for divorce citing one of the following grounds:
- adultery by the wife
- adultery by the husband coupled with incest/gross cruelty
- desertion for at least two years
- inability to cohabitmutual consent.
Muslim (Sharia) law
Muslim personal law recognises the right to divorce on a range of grounds, including:
- talaq – where a husband pronounces divorce on his wife
- khula – where a wife can file for divorce by giving up some of her dowry/mahr
- fasah – where a wife can file for divorce citing grounds such as: failure to provide support, malicious desertion or cruelty
- mubarat – divorce by mutual consent.
Child custody, contact and support arrangements following divorce in Sri Lanka
If you can’t agree on arrangements for child custody and contact after your divorce, the court will make an award based on your child’s best interests.
A court will typically award custody to a child’s father, except in certain cases:
- if it is detrimental to the life, health or morals of a child. For example, it may not be in the interests of a very young child to be separated from their mother
- where a father does not care for a child
- where there are safety or harm issues.
Once your son reaches the age of 14, or your daughter reaches the age of 16, their views will be taken into account in any custody award.
Sri Lankan law also imposes a duty on a parent to provide for the maintenance of all minor children, any dependent adult children aged 18 to 25, and any disabled children.
Sri Lanka is a signatory to the Hague Convention on Child Abduction. In theory, this should mean that if your child is taken out of Sri Lanka without your permission, or taken from your normal home country to Sri Lanka, you should be able to apply to the appropriate authority to assist with the safe and quick return of your child.
However, even though Sri Lanka has acceded to the Convention, not all countries recognise that the Convention is in force in Sri Lanka. For example, the UK does not recognise Sri Lanka as a signatory to the Hague Convention.
The two types of maintenance after divorce in Sri Lanka
The 1999 Maintenance Act covers the issue of maintenance during marriage and after divorce. It requires the spouse with sufficient means to maintain the other spouse if they cannot maintain themselves.
However, a maintenance order will not be made if you are the applicant and you are living in adultery, or you are both living separately by mutual consent.
Under the law in Sri Lanka, divorce-related maintenance can take two forms:
- Alimony pendente lite
- Permanent alimony.
Alimony pendente lite
Each spouse has the right to claim maintenance payments from the other pending divorce proceedings. You will have to show that:
- you are in need of financial support
- your spouse can provide the support you need
- you have a reasonable chance of success in the divorce action.
When your divorce is granted, the court can make one or more of the following awards:
- either spouse to pay the other a sum of money that the court deems reasonable
- either spouse to pay annual/monthly sums that the court deems reasonable
- secure the above payments though pledging property or buying an annuity.
Note that the court can discharge, modify, temporarily suspend, revive, or enhance any order that they make.
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