The Marriage Registration Ordinance (the “Act”) governs the registration, solemnization, and dissolution of marriages contracted under its provisions. It does not extend to marriages governed by Muslim law.
Validity of Marriage
A marriage under the Act is valid only where certain statutory conditions are satisfied. Both parties must have reached eighteen years of age. A marriage is void if the parties are related within the prohibited degrees, such as relationships of direct descent or between full or half-blood siblings. Cohabitation between such parties amounts to an offence and is punishable with imprisonment.
A marriage will also be invalid if either party has a prior subsisting marriage that has not been lawfully dissolved or declared void.
Procedure Prior to Marriage
Before a marriage is solemnized, notice must be given to a Registrar or District Registrar. At least one of the parties must have been resident for ten clear days within the relevant division or district before giving such notice. If neither party has been resident for ten days in Sri Lanka, notice may be given to the registrar in whose division or to the District Registrar in whose district one of the parties has been resident for not less than four days. A declaration must also be signed confirming that there is no legal impediment to the intended marriage.
Although the minimum age of marriage is eighteen, section 22 specifies whose consent is necessary where one party is under that age. Consent must be obtained from the father, or if he is deceased or incapacitated, from the mother or a guardian. This does not apply to a widow, widower, or person whose earlier marriage has been legally dissolved.
The Registrar issues a certificate not earlier than twelve days and not later than three months after the notice. If the marriage is not solemnized within three months, the notice and all related proceedings lapse and a new notice must be given.
The ceremony may be conducted by a minister in a registered place of worship or by a Registrar at his or her office. The Registrar must warn the parties that their marriage cannot be dissolved during their lifetime except by a valid judgment of divorce. The entry in the register made by the Registrar constitutes proof of the marriage and is the best evidence of it before any court.
Dissolution of Marriage
A marriage solemnized under the Act may be dissolved only by a judgment of divorce a vinculo matrimonii entered by a competent court. The expression denotes a complete and final severance of the matrimonial bond.
Grounds for Divorce
A decree of divorce may be granted only on one or more of the following grounds:
- Adultery committed after marriage.
- desertion.
- Incurable impotence existing at the time of marriage.
Every court exercising matrimonial jurisdiction in Sri Lanka is competent to hear and determine such proceedings.
Void
The Act also contemplates situations in which a marriage is void. A marriage is void from the beginning if the parties knowingly and wilfully intermarry in an unauthorised place, use false names, proceed without a lawful certificate (except in death-bed cases under section 40), or knowingly allow an unauthorised person to officiate.
Where a marriage has been obtained through a wilfully false notice, certificate, or declaration, the District Court may order the forfeiture of property rights accruing to the offending party, for the benefit of the innocent spouse or their issue.
Separation
An application for separation can be made by either the husband or wife by way of a plaint and answer to the District Court within the local limits of the jurisdiction in which he or she resides.
The grounds for a decree of separation are as follows:
- That further cohabitation with the defendant has become dangerous or intolerable for the plaintiff (the one who files the case)
- That the state of affairs was brought about by the unlawful conduct of the defendant
- Adultery
- Malicious Desertion
- Incurable Impotence
After expiry of a period of 2 years from entering of the decree of separation an application can be made for a decree of divorce.
Even where no application has been made for a separation but where there has been a separation mensa et thoro i.e. from bed and board for a period of 7 years , an application can be made for a dissolution of marriage. But even in such application one of the three grounds of divorce should also be established.
Distinction Between Separation, and Divorce
Divorce, or dissolution, is the termination of that union by judicial decree on a recognised fault-based ground, after which the parties may remarry. Separation, by contrast, does not put an end to a marriage. Spouses may live apart, but they remain legally married until a court pronounces a decree of divorce. A marriage contracted during such a period of separation would be invalid.
For further information, please contact:
Hasanthie Manukulasooriya, Partner, D. L. & F. De Saram
su@desaram.com
