The Proposal for Reforming Grounds of Divorce in General Law of Sri Lanka: A Comparative Analysis

Abstract

The main objective of this research is to make a proposal to the divorce law under the general law in Sri Lanka by extracting best practice examples from India and South Africa. Divorce law under the Sri Lankan general law continues to be governed by a fault-based system. Hence, a party seeking divorce is required to establish matrimonial fault adultery, malicious desertion or incurable impotency at the time of the marriage by satisfying a weight of evidence. Therefore, this paper seeks to introduce the breakdown of marriage as a ground for divorce in the general law of Sri Lanka. Consequently, the innocent party should prove the wrongful conduct of the other spouse and these proceedings are conducted before in open court, where parties to disclose their personal details of their marital bond, thereby adversely affecting their right to privacy and personal dignity. Sri Lanka as a plural legal system, marriage and divorce are governed by general law or special laws. The low country Sinhalese who are not governed by Kandyan law, Tamils, Kandyan who consent to marry under the general law are governed by the Marriage Registration Ordinance No.19 of 1907. This research examines the inadequacy of fault-based divorce law under the general law and argues for the necessity of reform and emphasizes timely requirement to amend the grounds of the divorce by introducing breakdown of the marriage as a ground for reflect contemporary notions of justice, human dignity, and privacy. This research uses a qualitative approach with doctrinal legal research method and the comparative legal research method with two selected jurisdictions. The doctrinal legal research method is followed to analyse the primary sources and secondary sources such as legislations, case laws, textbooks, journal articles, and scholarly articles. By identifying progressive legal principles and best practices, the research seeks to offer recommendations aimed at creating a more humane, efficient, and rights based divorce law regime in Sri Lanka under the general law.