- Civil law reforms sub-committee convenor AAL Mokshini Jayamanne discusses the latest reforms proposed to the divorce law and notes the required broader sociocultural changes
The prevailing legal system of getting a divorce in Sri Lanka needs to be improved in a number of ways because the existing law recognises only a handful of grounds based on matrimonial faults on which a divorce can be sought. This has compelled spouses to point fingers at each other, lawyers to be engaged in fierce battles, and children to be adversely mentally affected, making the overall process of getting a divorce a dragged-out one and therefore an extremely unpleasant endeavour.
According to attorney-at-law (AAL) Mokshini Jayamanne, a married couple trying to get out of an already shattered relationship, and also children caught up in such disputes, should not have to go through such stress, and therefore, Sri Lanka needs to replace archaic laws that govern divorce with updated, effective laws which are more reflective of the lived realities of her citizens. Jayamanne, who served as a Member and the Convenor of the Justice Ministry Subcommittee appointed by former Justice Minister, President’s Counsel (PC) M.U.M. Ali Sabry, to look into necessary civil law reforms, has played a significant role in proposing amendments to marriage and divorce laws along with other legal experts. In an interview with The Daily Morning, she explained what sort of legal reforms Sri Lanka needs as far as divorce is concerned.
The following are the excerpts from the interview.
What were some of the notable issues discussed by the said sub-committee as far as Sri Lanka’s divorce laws are concerned?
One of the main issues we discussed was the grounds on which a divorce is granted in Sri Lanka, which is limited to three. One of them is malicious desertion, which is divided into two types of desertion – i.e. direct malicious desertion, in which case the person who is filing the case says that the other person left the matrimonial home with the intention of bringing the marriage to an end, and constructive malicious desertion, in which case the person who left the home files the case saying that it was impossible for him/her to stay there and was therefore compelled to leave.
Other grounds are adultery and incurable impotence. All these are fault-based grounds. The law governing the dissolution of marriage is found in the Marriage Registration Ordinance, No. 19 of 1907 and the Civil Procedure Code, No. 2 of 1889. Both are very old laws. They were introduced to our country by the British during colonial times and are based on archaic Victorian thinking. The UK has long since moved on from the fault-based divorce regime. So have India, Singapore, South Africa, and several other countries.
The laws of these countries and more were extensively studied by the sub-committee. Sri Lanka is yet to introduce any reforms. We are still governed by laws which are centuries old. At present, the party filing for divorce has to prove in court that the other party has committed some kind of matrimonial fault. There are times when the other party countersues for divorce. So, then we have a situation where both spouses are making allegations against each other, which leads to a keenly fought trial, with each party presenting the worst possible evidence against the other, to win the case.
You see, if evidence is not presented in this manner, as the law stands at present, a marriage cannot be dissolved. Each party has to satisfy the burden of proof. The hands of the court are tied. The law requires the imputation of matrimonial fault. It isn’t sufficient to make allegations, as unpleasant as that can be, to win the case, since the allegations also have to be proven. What this means is that each party has to find and present damning evidence against the other, even if they don’t want to.
So, as you can imagine, a divorce case can get very ugly. The case itself can further fracture an already fractured relationship. And this affects not just the spouses, but also the children of the marriage, the extended family, and even shared friendships. This impacts society at large adversely. It creates an environment of hostility, both in and outside court. We also considered the adverse impact that such proceedings have on the children of the marriage. Children become collateral damage when parents are embroiled in a bitter court battle. As practitioners, we have seen this happening so often. Parties believe that when it comes to minor children, as parents, their authority is absolute and untrammelled, void of any form of accountability. It is very unfortunate that sometimes children are used as leverage, to get some kind of advantage. This should not happen. The mental and emotional agony that inevitably is visited upon a child of a fractured marriage, should not be worsened by acrimonious legal proceedings.
Over the years, our law has recognised this and the concepts of “the best interests” and “welfare” of the child have been developed and applied by courts to protect children. According to our law, judges of district courts where divorce and custody cases are heard, are considered to be the “upper guardians” of the children. What this means is that parents have to bow down to the better judgment of judges when it comes to children. And judges are guided by these principles of the best interests and welfare of the child. That is, if the question of custody or maintenance of a child comes up in a case, courts are required to apply these principles when making decisions relating to the same. But this is not crystalised in any form of legislation. Another issue is how long a divorce case gets dragged out. Justice delayed is justice denied and this is more so in the case of matters relating to matrimonial disputes and particularly in relation to the custody of minor children.
What sort of recommendations were made by the sub-committee?
On the direction of the Ministry, the sub-committee drafted a Bill to replace the law governing general marriages. But ours is not the first committee that was asked to study and make recommendations for the reform of matrimonial laws. From as far back as the 1950s, committees have looked into this. This includes the Law Commission.
Having analysed the reports and draft Bills of these committees and the Law Commission, we found that all the recommendations made had one thing in common: the need to do away with matrimonial fault. Our sub-committee agreed. We studied the laws of multiple countries and discovered that even countries that strongly held on to the concept of fault for years have done away with it now. We have recommended that the present grounds be replaced with irretrievable breakdown as the sole ground for divorce. What this means is that the parties will no longer need to prove matrimonial fault, but establish that the relationship between the parties has broken to such an extent that there is no possibility of the restoration of the marriage. The Bill gives examples of what constitutes an irretrievable breakdown. Parties will still need to file a case. The intervention of the court will still be required. There is no possibility of an “over-the-counter” divorce.
The Bill also provides for the possibility of parties to be reconciled, even after filing the case. If there is no objection to the divorce being granted, there being no contest, the case can be concluded without having to lead evidence. The Bar Association was invited to give their feedback on the recommendations made by the sub-committee. Based on this feedback, the sub-committee refined its initial draft.
The Bill also crystalises the concepts of the best interests and welfare of the child, and priority has been given to safeguarding minors. The sub-committee was assisted by highly respected professionals, in formulating guidelines on what can be considered when deciding on the best interests and welfare of minors. Things like the child’s age, gender, maturity and stage of development; physical and emotional security; the child’s wishes and feelings based on his/her maturity; mental capacity; if the child has special needs; the need for a stable and caring environment; and so on.
When do you think the recommended changes will materialise?
The incumbent Minister Dr. Wijeyadasa Rajapakshe PC is 100% on board with the recommended changes. The draft is in its final stages, and at the moment, the Legal Draftsman is refining the language. We hope to see the Bill passed soon.
What are the international best practices that Sri Lanka can take into account when amending, or improving divorce-related laws?
Having studied the laws and best practices in other jurisdictions, we recommended several progressive reforms to the law. We have proposed in-camera proceedings, when appropriate. If a child or a vulnerable spouse is involved in a divorce case, one can make an application to the court, and the court can hear the case privately. We have also proposed legal provisions to empower courts to appoint either a lawyer or any other competent person to represent a child in a divorce case to ensure that the child’s interests will be safeguarded.
The proposed law also provides that if a marriage is void (ie. the marriage is considered not to have taken place at all), where there are children born in such circumstances, the children will not be prejudiced. The draft Bill takes cognisance of the United Nations Convention on the Rights of the Child. There are provisions in the draft law that also allow parties to a marriage to file action and ask for relief from the court without seeking a divorce. This allows a party who wishes to remain married but wants relief against his/her spouse, to come to court and ask for things like maintenance, protection from the spouse, maintenance for the children and so on. The proposed law also offers some protection to persons in non-marital relationships, as well. Another significant element of the law is that in an effort to prevent long protracted litigation in matrimonial matters, it provides that a case has to be concluded within a limited period of time.
What is your opinion on the concept of reconciliation in divorce cases?
I believe that any relationship can be mended, whether it is a friendship, a parent-child relationship, or a husband-wife relationship. There are misunderstandings and disputes, but there is always room for reconciliation. At present, in practice, if someone files a divorce case, the judge will, as a first step, refer the relevant parties to the family counsellor of that particular court. So, it happens in practice but it isn’t a mandatory legal requirement. The proposed law allows the court to postpone proceedings in a case to allow parties to be referred to a counsellor to consider reconciliation or to take any other appropriate steps in consultation with the parties. I believe that reconciliation is very much possible, but it cannot be forced on anyone. It has to be arrived at willingly.
Aside from the necessity of legal reforms, what other issues do you see in the process of getting a divorce?
As mentioned earlier, our court processes are adversarial in nature. One party is pitted against the other, and the environment is such that it facilitates animosity and hostility. This is necessary in most types of cases. In civil law, we have land disputes, money recovery matters, personal injury cases, and so on. In these types of cases, an adversarial approach is needed. But, we have found that as litigators, we would be able to serve clients in a matrimonial dispute better, if we adopt a different approach than what we are accustomed to in other cases.
The adversarial system encourages hostility and competitiveness. But since matrimonial disputes are far more nuanced and there are far more sensitive matters in question, adopting the customary adversarial approach isn’t ideal. We should try to look at the best possible outcome for all those concerned and try to prevent the further fracturing of relationships within the family unit.
In addition to legal reforms, what other factors, including social factors such as the negative attitudes towards the concept of divorce in Sri Lankan society, do you think we can look at when discussing divorce cases?
I think that Sri Lanka is developing. We are constantly evolving. We are trying to be better. People have accepted that marriages do fall apart, despite the best efforts of the spouses, and that there should not be any stigma attached to divorce. But I believe that there is still a little hesitation to accept the concept of “co-parenting”, where two separated or divorced partners can come together for the sake of their children.
Another important matter is intimate partner abuse. As Sri Lankans who value harmony and tolerance, we should resist the normalisation of any form of abuse, but more so, abuse in an intimate relationship, like marriage. The sub-committee has, in fact, also made representations to enhance the protections provided by the Prevention of Domestic Violence Act. I also believe that Sri Lankans are beginning to appreciate the importance of psychosocial assistance when it comes to anything really. There should be a readiness to seek help when it is needed, without there being a negative narrative surrounding persons seeking professional help to navigate through the stresses of life, particularly when there are matrimonial disputes involved, as it can be an extremely traumatising experience.