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In landmark ruling, CA says overseas divorces valid here
View(s):By Namini Wijedasa
The Court of Appeal in a landmark judgment this week ruled that there cannot be any restrictions for a marriage entered into in Sri Lanka to be dissolved in a competent court in a foreign country if such court opines that such dissolution could be permitted under its laws.
Till now, divorces obtained in foreign courts by Sri Lankans who married in Sri Lanka and moved overseas were not accepted here. Justice Sobhitha Rajakaruna’s judgment, with Justice Dhammika Ganepola agreeing, changes the status quo for the first time.
Petitioner Liyanage Champika Harendra Silva, a British resident, through his lawyer, wrought a writ of certiorari quashing the March 2021 decision of Sri Lanka’s Registrar General of Marriages by which he was informed that, when a marriage is registered as per the laws of Sri Lanka, he is unable to recognise under Sri Lanka’s prevailing laws the dissolution of such marriage obtained in a foreign country.
He said the petitioner ought to obtain a decree from a competent court in Sri Lanka by filing a divorce action.
Mr. Silva also sought a writ of mandamus directing the Registrar and other respondents to give legal effect to the decree of divorce dissolving the marriage between him and respondent Poorna Sewwandi Nagasinghe, issued by a Family Court in England. He is a dual citizen of Sri Lanka and Britain. The couple married in Colombo in 2010, migrated to England and set up home there.
After their marriage broke down, Mr. Silva instituted action for divorce in the Kaduwela District Court. But Ms. Nagasinghe’s legal representatives informed Court that she had by then filed for divorce in the Family Court at Kingston-Upon-Thames in England. Mr. Silva consequently withdrew his own case from the Kaduwela District Court.
The British Court issued a degree in 2018 dissolving the marriage after which Mr. Silva entered into another union in 2019 at a Marriage Registration Office in Bangkok, Thailand. He then wrote to the Registrar in Sri Lanka requesting that legal effect be given in Sri Lanka to the decree of dissolution of marriage obtained in England.
The Registrar’s response was as reported above. But Justice Rajakaruna said he was inclined to accept Mr. Silva’s proposition that the legislature had not intended to limit the words “some competent court” only to a court in Sri Lanka. Based on three guidelines he formulated (including that both parties ought to have been residing in the respective country for a reasonable period when applying for a divorce) and subject to other laws of Sri Lanka, he said a valid decree of dissolution of marriage entered into in a foreign country can be given effect, when necessary, within Sri Lanka.
The Court granted Mr. Silva a writ of certiorari to quash the Registrar’s decision. But it did not grant a writ of mandamus, stating that “there doesn’t appear to be any express provision in the said Ordinance that bound the Registrar to execute such a duty whenever a District Court of Sri Lanka issues a divorce decree”.
However, the determination should not be an impediment to getting such a declaration from a District Court in Sri Lanka confirming or establishing the dissolution of marriage that has taken place in a foreign country, it said.
Senany Dayaratne with Nishadi Wickramasinghe appeared for the petitioner. State Counsel Nayomi Kahavita with State Counsel M. Fernando appeared for all respondents except Ms. Nagasinghe.
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