A divorce can be obtained in Sri Lanka on establishing one of the following grounds (Matrimonial faults) in Court:
1. Adultery subsequent to marriage
2. Malicious Desertion (where the party at fault leaves the Matrimonial home) or Constructive Malicious Desertion (where the innocent party is compelled to leave the matrimonial home by the Party at fault)
3.Incurable impotency at the time of marriage
In order to obtain a divorce in Sri Lanka, an action must be filed by the plaintiff alleging one of the aforementioned grounds in the relevant District Court situated in the area where either party resides. In other words, jurisdiction for divorce actions is based on domicile in Sri Lanka. Hence, in order to file a divorce action at least one of the parties should have an address in Sri Lanka. The court in which the case should be filed will be based on the addresses of either the Plaintiff or the defendant. For instance, if one of the parties reside in Colombo 5 the action can be filed in the District Court of Colombo.
Once the action is filed, summons is served upon the Defendant. Thereafter, on the first calling date of the case the Defendant should be present in court in person or be represented by his / her lawyer and file proxy and his / her answer. Thereafter, the case will be fixed for trial and the parties will have to establish a valid cause of action for divorce. Once trial is concluded Judgement is pronounced and Decree Nisi is entered in accordance with the judgment. Thereafter there is a mandatory waiting period of 3 months after which the Decree Nisi is made Absolute (i.e. the divorce is finalized).
As the action is filed by the Plaintiff seeking a divorce in his / her favour based on the Defendant’s matrimonial fault, the Defendant may wish to contest the action filed against him/her. In such a contested divorce action the trial can go on for as long as each party establishes their case to the satisfaction of court. Generally, cases are contested where minor children are involved or where there is a claim for alimony. If the defendant opts not to contest the divorce and consents to granting a divorce in the plaintiff’s favour (i.e. in an uncontested Divorce action), trial can be concluded in a couple of days and Decree Nisi entered accordingly. Hence, although in Sri Lanka consent of parties is not a ground for obtaining a divorce, in practice if both parties are agreeable for a divorce the parties can opt for an uncontested divorce. However, the mandatory waiting period of 3 months to make the Decree Nisi Absolute applies to both contested and uncontested divorce actions.
Either party has the right to appeal a judgment entered in a divorce case in the first instance to the Court of Appeal and thereafter to the Supreme Court.
The documents and details required to institute a divorce action in Sri Lanka are as follows:
- Full names and addresses of the parties
- Date and place of marriage
- Original marriage certificate or a certified copy issued by the issuing authority to file in Court.
- Names and certified copies of the birth certificates of children (if any) and whether the plaintiff is claiming legal and physical custody
- Place where the parties established their matrimonial home
- Timeline of events leading to the breakdown of the marriage
- Requests for maintenance/alimony (if any)
- Proxy signed by the Party applying appointing a lawyer/lawyers to appear on their behalf (will be provided by the lawyer)
This is only an overview of the applicable law and should not be relied upon as legal advice or recommendation by D. L. & F. De Saram, a leading law firm in Sri Lanka.
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