1. The Matrimonial Home and Other Separate Property
This is one of the most common questions our family law team receives: “The property is in my name — what will happen to it after the divorce?” or “We both contributed towards the property — what are our rights?”
Sri Lanka does not operate a community of property system in the way that some other legal systems do. Under our general law, which is grounded in Roman-Dutch legal principles, property belongs to the person in whose name it is registered. Marriage alone does not create shared ownership.
This comes as a shock to many people, particularly those who spent years contributing to a household, making mortgage payments, or funding significant improvements to a family home, but whose name does not appear on the title deed.
However, the fact that your name does not appear on the title deed does not necessarily mean that you are without recourse. In terms of the Civil Procedure Code of Sri Lanka , the Court is empowered, upon granting a divorce or separation, to make orders relating to property and financial relief between spouses.
The court may order the spouse to:
(a) Make a conveyance or settlement of property – The court can direct a spouse to transfer ownership of property, or create a settlement, if the court considers it reasonable.
(b) Pay a lump sum – The court can order the payment of a single gross sum of money.
(c) Pay periodic maintenance – The court can order monthly or annual payments.
(d) Provide security for payment – The court can require the paying spouse to guarantee that the ordered payments will actually be made. This can be done by:
- hypothecation of immovable property
- by the execution of a bond with or without sureties
- by the purchase of a policy of annuity in an insurance company or other institution approved by court.
2. Children – How Sri Lankan Courts Determine Custody and Access
Nothing about a divorce is more painful than the question of where the children will live, and who they will live with. Both parents typically want the same thing, to be present in their children’s lives, and both, in most cases, genuinely believe they are better placed to provide stability. When they cannot agree, a judge has to decide.
It should be noted that the Court is the upper guardian of minor children and, in exercising its jurisdiction, is guided by the paramount consideration of the best interests of the child principle.
When considering the best interests of the child. Courts will look into the child’s welfare, considering factors such as ;
- education,
- living arrangements,
- emotional well-being
- caregiving role of each parent
In matters concerning custody of children, two procedural avenues are generally available. A party may seek custody within divorce proceedings, or alternatively, institute a separate independent action specifically for custody.
A few things that regularly surprise clients when they first consult us:
Who will have the custody of the kids until the divorce is finalized?
Custody of children until the divorce is finalized is decided by the court based on the best interests of the child. The court may grant interim custody to one parent and visitation rights to the other pending the final determination of the divorce case.
Physical custody and legal custody are not the same thing?
Physical custody means who the child lives with on a day-to-day basis and who is responsible for the child’s daily care.
Legal custody means the right to make important decisions about the child’s life, such as education, healthcare, religion, and general welfare.
In Sri Lanka, the court may grant one parent physical custody while both parents retain legal custody, depending on what is in the best interests of the child.
3. Maintenance
During the pendency of a divorce action and after its conclusion, the court is empowered to make orders relating to maintenance of minor children.
Even after a decree of divorce, separation, or nullity has been granted, the Court is able to upon an application made, make such orders as it deems fit regarding the maintenance, of the minor children of the marriage. As the children grow the needs and the expenses relating to them may increase and vary. Accordingly, an application can be made to court to meet such requirements.
In addition, applications for maintenance may be instituted in the Magistrate’s Court, which provides a practical and efficient mechanism for obtaining and enforcing maintenance orders. Where a party fails to comply with a maintenance order, the Court has the authority to take enforcement action and impose the sanctions provided by law to ensure compliance with its orders.
FAQ’s
No. Sri Lankan law does not automatically require an equal division of property upon divorce. Property owned by one spouse before the marriage is generally treated as separate property, although the Court may still consider contributions made during the marriage when deciding on financial relief.
Custody is determined based on the best interests of the child, which is the guiding principle of Sri Lankan courts. The Court will consider factors such as the child’s welfare, education, living arrangements, emotional well-being, and the caregiving role of each parent. In some cases, one parent may be granted physical custody while both parents retain legal custody, allowing both to participate in major decisions concerning the child’s life
Yes. Even after a divorce has been finalized, the Court may, upon an application being made, vary or modify orders relating to the custody and maintenance of a child if circumstances have changed and it is necessary to meet the child’s current needs and best interests.
