A stressful experience for both parties
Love, affection, mutual understanding and the family unit is a highly respected concept in the Asian culture. But in various instances this unit is broken down as a result of misunderstandings between the spouses which would mainly affect the psychological well-being of the children. However, once a couple decides to get a divorce, the stigma that revolves around this concept is greatly felt. As a result of this stigma, access to basic laws too has become limited, making it a rather stressful experience for both parties irrespective of the grounds.
Grounds for Divorce
Section 19(1) of the Marriage Registration Ordinance(No.19) of 1907 states that
No marriage shall be dissolved during the lifetime of the parties except by judgment of divorce a vinculo matrimoniali pronounced in some competent court.
Such judgment shall be founded either on the ground of
- adultery subsequent to marriage,
- malicious desertion or
- incurable impotence at the time of marriage
In the case of adultery it is not recognized as a criminal offence in the Penal Code of Sri Lanka. But over the years it has been established that the standard of proof for adultery in divorce cases is the same as that found in the criminal law. This makes it compulsory to prove that the accused has committed adultery while married to the person filing the divorce without any reasonable doubt.
Malicious desertion occurs where there is a “deliberate and unconscientious, definite and final repudiation of the obligations of the marriage state” as stated in the Sri Lankan case law. However malicious desertion can take two forms – simple malicious desertion and constructive malicious desertion. Simple malicious desertion is where the offending spouse leaves the matrimonial home and constructive malicious desertion is where the innocent spouse is compelled to leave the matrimonial home as a result of the actions of the other. However in the latter situation it should be proved that the offending spouse made cohabitation absolutely unbearable. Malicious desertion continues to exist as long as the fact of desertion and the intention to end the marital relationship continues to exist.
Incurable impotence deprives the spouse of a fundamental requirement in marriage and it has been identified as a reason to file for divorce.
Under the Sri Lankan law, maintenance with regard to divorce comes as follows:
Alimony pendente lite, or support payments made to a spouse pending divorce proceedings, and
Permanent alimony, or support payments made to a spouse following divorce.
In alimony pendente lite, either spouse has the right to claim maintenance from the other, so long as they can prove that they are in need of financial support, that the other party is equipped to provide the required support and that they have a reasonable chance of success in the main action of divorce.
Under permanent alimony either party could do any other following at the discretion of the court
- Make any conveyance or settlement as the court deems reasonable.
- Pay a gross sum of money that the court deems reasonable.
- Pay annual or monthly sums of money that the court deems reasonable.
- Secure the above-mentioned payments through the pledging of immovable property, the execution of a bond, or the purchase of a policy of annuity in an insurance company or any other institution the court deems fit.
- Discharge, modification, temporary suspension, revival or enhancement of any such order could be done at the discretion of the court.
When considering the custody of a child if the parents are still legally married the preference goes to the father. But in the case of a baby or a child who is dependent on the mother or the father doesn’t care or where the child’s safety is in question, certain exceptions are being made. Upon divorce, the right to custody will be granted taking the child’s best interests into account. In the case of a child who is a boy who is 14 years or older, or a girl who is 16 years or older, the child’s views will influence the granting of custody.
Taking all these matters into account, it is quite evident that spouses go through a rather traumatic experience. In order to shed light on the inconveniences faced by some divorcees we asked a few people about their experiences.
Here is what they had to say...
“This just takes your life away because you have no time for anything else other than dedicating yourself to the courts...” - Chandrika
Chandrika says that firstly she felt that she made a mistake in applying for divorce. “There are various misconceptions when it comes to the law, justice and divorce. I had caught my husband red-handed and I had all the evidence against him, so I thought it would be a clear case. However, the courts didn’t view it like that. They tried to patch things up and also do not seem to take a woman’s plight seriously: things don’t happen as portrayed in movies. My biggest mistake was hiring a male lawyer who was not sympathetic to the case. I also do not recommend applying for the divorce because in that case the accused person is at an advantage. He could evade or postpone the court hearing saying he’s ill or giving any other lame excuse. But from day one as plaintiff I had to show up every single time. This just takes your life away because you have no time for anything else other than dedicating yourself to the courts, paying lawyers, taking leave, paying transport etc. At one instance the lawyer asked me to apply citing the co-respondent and that I could ask for a bigger sum as compensation. But later on he again asked me to take it away and accept divorce without compensation or custody of my children, saying that if my husband contested this could drag for years.”
Chandrika further said that in Sri Lanka if a woman divorces she become a “second-hand” item in society and is shunned and easy prey. “When my case went to the magistrate, who was a lady, she was horrified and she asked why the lawyer had not asked for alimony: this was due to his negligence/lack of concern. In courts I wasn’t embarrassed to speak out about my experience as I was the innocent party but I had a language problem since everything is in Sinhala. The courtroom situation was not quite woman-friendly and it was intimidating. My husband sidestepped each hearing till the last minute.I had two years of suffering in courts and nothing to show for it, after all it was not as if I would be marrying again in a hurry-and neither did I own any properties, so what was the actual point of going through a legal divorce. The law does not keep women safe, it is much more important to have a job and a house of your own to stay in so that you don’t have to have anything to do with such a husband.”
“Maintenance fees need to be paid for the survival of children and in the case if it is not paid there is no action taken against it. If this happens to a mother without a job she will be utterly helpless..” - Denushi
In her experience Denushi says that the court hearings got postponed and none of the incidents were questioned or followed up. “Maintenance fees need to be paid for the survival of children and in the case if it is not paid there is no action taken against it. If this happens to a mother without a job she will be utterly helpless. In most instances the other party can escape with a whole load of excuses. The case was heard once in two months and then by that time the judges have got transferred and there was overcrowding because they don’t have time to go through each and every case. I have been in courts for the past two and a half years and the courtroom situation is very much intimidating. “You get all sorts of people sitting next to you. Since it is a male-dominated environment they often tend to shout at women who come in various attires. It is quite embarrassing when they shout and it is quite an unpleasant experience. I think the government should implement strict conditions and include more provisions to expedite the divorce process.”
“The main concern I have is that the grounds for divorce still exist under three conditions..” - Sharmini
Attorney-at-law Sharmini Pieris says that usually the matter should be contested in courts when one party doesn’t give the divorce. “When the couple has children they will have an issue about access. When one person is given custody there is also the problem of maintenance and child support. Also there are ego issues as to whether which party will have the children. Usually the issue of custody comes up in a big way. Making things even worse there are land matters and issues pertaining to divorce settlement and whether the money that is given is sufficient enough. I also prefer if these cases are not heard in open courts. The main concern I have is that the grounds for divorce still exist under three conditions. But when looking at today’s society, divorce should be granted by mutual consent. Even when there is incompatibility there is no provision. There are instances when people have to file for malicious desertion and frame the case. This would make them uncomfortable as they will have to lie in order to prove that such an incident has actually happened. Therefore the legal system has to be upgraded to suit today’s society.”