Section 19 (1) of the Marriage Registration Ordinance (No. 19) of 1907 establishes that “no marriage shall be dissolved during the lifetime of the parties except by judgment of divorce… pronounced in some competent court”.
But there’s more to getting a divorce than wanting one.
Section 19 (2) of the act lays out the three grounds on which a divorce may be granted:
- Adultery subsequent to marriage,
- malicious desertion,
- incurable impotence at the time of such marriage.
Adultery After Marriage
Where a divorce is sought on the ground of adultery, the person alleging it must prove that his or her spouse had sexual relations with another person while in the marriage in question.
Adultery is not recognised as a criminal offence in Sri Lanka’s Penal Code, but the courts have – over the years and through a number of cases – established that the standard of proof for adultery in divorce cases is the same as that found in criminal law. In other words, it must be proven beyond any reasonable doubt that the accused did, in fact, commit adultery while married to the person filing for divorce.
Adultery isn’t a crime under Sri Lankan law, but is a valid ground for divorce.
Image Credit: The Huffington Post
According to Sri Lankan case law, malicious desertion occurs where there is “a deliberate and unconscientious, definite, and final repudiation of the obligations of the marriage state”.
What this means, in simpler terms, is that the person seeking the divorce should be able to establish two things – namely, the fact of desertion, and an intention to end the marital relationship, both on the part of his or her spouse.
Malicious desertion can, however, take two forms – simple malicious desertion, which occurs when the offending spouse leaves the matrimonial home, and constructive malicious desertion, which occurs when the innocent spouse is compelled to leave the matrimonial home as a result of the actions of the other. The latter situation is more difficult to establish, as it must be proven that the offending spouse made cohabitation absolutely unbearable.
Malicious desertion is a continuing offence. What this means is that it exists so long as the fact of desertion and the intention to end the marital relationship continue to exist. Where either of the above factors cease to exist, so will the possibility of claiming malicious desertion as a ground for divorce.
Incurable Impotence At The Time Of Marriage
An incurable impotency is something that results in the spouse in question not being able to fulfill a fundamental requirement of marriage.
While the inability to consummate the marriage is considered an an incurable impotency, the incapacity to bear children has been held not to be.