Liyanage Champika Harendra Silva Vs W.M.M.B Weerasekera and 5 others – CA WRIT/ 266/2021
The Court of Appeal holds that a foreign decree of divorce, of a marriage contracted in Sri Lanka is valid and effectual in Sri Lanka subject to the guidelines set out.
The factual content and circumstances before the Court, commence with –
- The Petitioner (Husband) and 3rd Respondent (Wife) having on the 9th of December 2010 contracted a valid marriage in Colombo, Sri Lanka and proceeding to establish their matrimonial home in the United Kingdom;
- On a subsequent break down of marriage, on the application for a divorce by the wife in the Family Court at Kingston-Upon-Thames in England, bearing Case No. BV15D22438 and the husband being a participant, a Decree of Divorce was issued on the 2nd of May 2018 by the Court in England dissolving the marriage (‘foreign decree of dissolution of marriage’);
- The Husband entered into another marriage on 20th August 2019 in Thailand.
The husband by writing of 8th February 2021 to the Registrar General of Marriages in Sri Lanka (‘Registrar’) sought legal effect be given to the foreign decree of dissolution of marriage by disregarding/invalidating/removing the entry in the relevant register of the marriage with the wife. The Registrar by writing of 10th March 2021 (‘Registrars Writing’), informed the Petitioner that the foreign decree of dissolution of marriage’ cannot be given effect to, and as per the advice received from the Attorney General’s Department, and that the Husband is required to file legal proceedings in Sri Lanka and obtain a decree of dissolution of marriage.
The fundamental relief (relief’) sought by the Husband, was: –
- A mandate in the nature of a Writ of Certiorari quashing the decision of the Registrar refusing to recognize the foreign decree of dissolution of marriage of a marriage contracted in Sri Lanka.
The Learned Judges in determining the application for relief, have taken cognizance of the relevant law, jurisprudence and the history, spirit and intention of the legislature in Sri Lanka.
The legal provision being, section 19 of the Marriage Registration Ordinance No. 19 of 1907 ( amended) [ ‘MRO’], providing for the ‘Dissolution of marriage’ in that, ‘(1) No marriage shall be dissolved during the lifetime of the parties except by judgment of divorce a vinculo matrimoniali 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 and (3) Every court in Sri Lanka having matrimonial jurisdiction is hereby declared competent to dissolve a marriage on any such ground’.
The Court, in interpreting the words ‘competent court’ in section 19(1) of the MRO, considered the case Asokan Nee Kandasamy v. Asokan (1994) 1 SLR 413 which determined that divorce jurisdiction is exercisable by Sri Lankan courts irrespective of the place where the marriage was contracted, thus, prompting the question of whether the same principle cannot be applied in resolving the facts referenced.
The Learned Justices, also inter-alia considering the wider social impact of a dissolution of marriage, opined – ‘If there is a stringent law that prevents parties who opted to get their marriage registered in Sri Lanka, from seeking a divorce vinculo matrimonii in another country based on genuine reasons, they may ordinarily face severe hardship including physical, mental and financial agony………….’
In delivering a considered Judgment, the Justices, held that in interpreting Section 19 (1) of the ‘MRO’ , subject to the application of the guidelines below, the word ‘some Competent Court’ will include a ‘Competent Court’ in a foreign country; in that;
- Such Court must be in law vested with the jurisdiction in respect of the dissolution of a marriage and be in law the ‘Competent Court’ in the foreign country; and
- The Parties must have been residents of the foreign country for a reasonable period of time; and
- The parties must have been properly represented and participated in the legal proceedings according to the laws and procedures of the foreign country.
The Court concluded that if these guidelines are satisfied, a foreign decree of dissolution of marriage can be given effect in Sri Lanka, subject to other Sri Lankan laws.
Accordingly, the Learned Court granted the relief as sought, in the form of a Writ of Certiorari Quashing the Registrars writing.
The Judgment being a welcome judicial pronouncement, considering the very restrictive divorce laws in the Country, will however require to be supported by legislation encompassing the larger complexities of a foreign judgment. Adequate legislation regarding the reciprocal enforcement of judgments, including in relation to divorce decrees. This may result in complex legal ramifications in trying to enforce the terms in a foreign decree of dissolution of marriage, which may include matters or that arise consequentially, such as child custody and access, child support, maintenance, alimony and most importantly property rights and distribution.
For further information, please contact:
Manjula Sirimane, Partner, D.L.&F. De Saram.
desaram@desaram.com
