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Divorce beginning not an end

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Law is Light is a trilingual legal project to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ingnorance of the law is not an excuse. The Pro Bono Committee of the Law Students’ Association of Sri Lanka strives to educate the general public by simplifying the laws in our country. In the seventh discussion, the programme focused on “Divorce laws”.

The discussion featured Attorney-at- Law:, Jerusha Crossette-Thambiah, Legal Advisor to the Mayor of Colombo Municipal Council, a Legal Consultant and Gender Practitioner and a lecturer at Cfps Law School

Before we go into the questions, can we address the negative connotation in society on divorce?

Having a stigma is not beneficial to you. Marriage is a contract people willingly get into it, you should be able to willingly get out of it as well. Marriage at its best is a great partnership and a support system but at its worst it is very similar to an abuser and victim dynamic or sometimes even murderer and victim because we see intimate partner violence is one of the highest rates of female murder in Sri Lanka. Divorce is a simple decision to exit a contract.

What is divorce?

Under the General Marriage Ordinance (GMO), divorce is seen as a dissolution of marriage by a competent Court, a contract entered into by a man and a woman.

The grounds for divorce?

There are three grounds upon which divorce can be filed

a) Adultery – is a hard ground to prove as the burden rests on the plaintiff to show that sexual intercourse took place outside marriage.

b) Incurable impotency – It is not about whether you can have children or not, it is about whether you can perform sexually or not and you need to prove that you have taken steps medically and that you are unable to perform sexually. If the other party did not know this at the time of marriage

c) Malicious desertion – leaving the consortium of marriage without just cause. This can happen in two ways: when a spouse leaves the marriage with no intention to return and the other is when the other partner is forced to leave the home due to intolerable behaviour.

Can a couple get divorced on mutual consent?

Even though international law provided for it, we don’t have a written law for it. It was proposed in the Matrimonial Causes Act, which is still at a Bill stage. That has not been passed yet.

We have a faster way “non-contested divorce” where one party files once you have agreed that you no longer want to be together and the other person doesn’t contest it.

But in our personal laws, the KMDA and MMDA seem more progressive.

Having two personal laws that have a mutual consent as a ground for divorce, why is the general law not accommodating it?

This is because personal laws are based on our culture and our culture was quite progressive in the sense that they don’t want to trap someone in a relationship anymore. Whereas the general law is based on British principals and the English law is based on the Bible. In it there is an area that believes that divorce is hated by God.

At present, the English law has progressed and they have mutual consent.

What is the procedure of application for a divorce?

You meet a lawyer and file a plaint and attach any proof mainly your marriage certificate, children’s birth certificate and other proof.

Do you get compensated after the divorce?

What we pray for is alimony, which is seen as compensation for a divorce. The party who has been wronged is proving their case and saying – “for living with you for so many years and now you have wronged me matrimonially I want this alimony”. Aside from that there are maintenance orders, financial orders, and property transfer orders. All of these can be received as an order from a Court.

Are these gender neutral?

Yes. Anybody who earns more cannot leave the other destitute. If you can show that one person has a need and the other person is capable of paying it and there is sufficient reason, any gender will be subject to payment.

Do we have the concept of a prenup in Sri Lanka?

We don’t have the exact concept but any contract two people have entered into is accepted. Court will allow it to be followed.

So this is a general contract where you state your terms and conditions by both parties and you’ll agree to abide by it?

Correct Can you give us a few examples of these terms?

If one person has a lot of money or owns a business, that family may want to protect their assets away from this marriage. They will agree on not including that money for the settlement. This is done to safeguard your family wealth. In Tiger Wood’s prenup, his wife had a clause saying, if he cheats on her, she will get a very high payout. And she did.

What are the rights of the parties after a divorce? And during a divorce?

The rights that a party has is, they can ask for spousal maintenance. You can ask for transfer of properties if you are taking care of the children. There can be financial monthly settlements that can be lump sum payments. You can ask for maintenance for your children.

At the end of the divorce, the main things to be decided are things like custody. Who gets legal rights and physical rights based on the best interest for the child.

What are the legal consequences of a divorce?

One is the order on what you get to do with your custody and the other is about redistribution of your property. Your alimony.

How does the general law apply in the case of a foreign national?

If you are living here you come within the jurisdiction of local Courts and you are able to apply for a divorce in this country. The only thing you need to look at is if your marriage registration was done in another country, will this divorce that you get in Sri Lanka be applicable under that law. Sri Lanka does not accept divorces taken place in other countries.

Judicial separation What is judicial separation?

This a ground that is allowed so that people don’t separate or divorce due to the normal stressors of day-to day life and they are given an opportunity to go their separate ways and rethink. They can come back together. You are asking for a right not to cohabit for 2 years. You cannot remarry during this time

What are the grounds for judicial separation?

There are two grounds – 1) the other person has become too intolerable to live with or dangerous to live with and two) the other person is acting in an unlawful manner and they should not be allowed to live together.

Does a judicial separation automatically become the dissolution of marriage after a certain period of time?

No, it is not automatic. After two years the Court will give you an option to file for divorce.

When a person goes through a divorce, they are called a divorcee. What is a person called after a judicial separation?

You will be called a judicially separated person not a divorcee.

Nullity What is Nullity of marriage?

This is a declaration sought from Court that your marriage was never legal to begin with. A nullity is saying that your marriage is so legally wrong or defective that it was never legal in the first place.

What qualifies a marriage as being null and void?

There are two sets of principles:

Void reasons – Minimum age, prohibited degrees (where you marry your relatives or incestual relationships), bigamy (when you get to another person before getting a divorce from your spouse), defects in formality.

Voidable reasons – duress ( where you are forced to marry the person), incurable impotence, mistake, illicit sexual relations (where you have sexual relations out of your marriage but unlike adultery, if the marriage was never consummated with the partner but there is relations outside the marriage), pregnant by a third party ( this is a ground for a woman’s current husband)

Can you remarry after the nullity of marriage?

A divorce accepts that you are released from the marriage. A nullity states that your marriage never legally happened. Therefore you are a single person and you have the right to remarry.

(Compiled by Zeenath Zakir, Pro bono Secretary 2020-2021

The complete discussion is available on our YouTube channel ‘Law Students Association of Sri Lanka’, in all three languages.

These are laws that are subject to change with future developments by the Legislature)



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Features

How Hamas built a force to attack Israel on 7 October

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Joint military drills were held between Palestinian armed factions from 2020 onwards (pic BBC)

Five armed Palestinian groups joined Hamas in the deadly 7 October attack on Israel after training together in military-style exercises from 2020 onwards, BBC News analysis shows.

The groups carried out joint drills in Gaza which closely resembled the tactics used during the deadly assault – including at a site less than 1km (0.6 miles) from the barrier with Israel – and posted them on social media.

They practised hostage-taking, raiding compounds and breaching Israel’s defences during these exercises, the last of which was held just 25 days before the attack.

BBC Arabic and BBC Verify have collated evidence which shows how Hamas brought together Gaza’s factions to hone their combat methods – and ultimately execute a raid into Israel which has plunged the region into war.

‘A sign of unity’

On 29 December 2020, Hamas’s overall leader Ismail Haniyeh declared the first of four drills codenamed Strong Pillar a “strong message and a sign of unity” between Gaza’s various armed factions.

As the most powerful of Gaza’s armed groups, Hamas was the dominant force in a coalition which brought together 10 other Palestinian factions in a war games-style exercise overseen by a “joint operation room”.

Prior to 2018, Hamas had formally coordinated with Palestinian Islamic Jihad (PIJ), Gaza’s second largest armed faction and – like Hamas – a proscribed terrorist organisation in the UK and other countries.

Hamas had also fought alongside other groups in previous conflicts, but the 2020 drill was billed in propaganda as evidence a wider array of groups were being unified.

Hamas’s leader said the first drill reflected the “permanent readiness” of the armed factions.

The 2020 exercise was the first of four joint drills held over three years, each of which was documented in polished videos posted on public social media channels.

The BBC has visually identified 10 groups, including PIJ, by their distinctive headbands and emblems training alongside Hamas during the Strong Pillar drills in footage posted on the messaging app Telegram.

Following the 7 October attack, five of the groups went on to post videos claiming to show them taking part in the assault. Three others issued written statements on Telegram claiming to have participated.

The role of these groups has come into sharp focus as pressure builds on Hamas to find dozens of women and children believed to have been taken as captives from Israel into Gaza by other factions on 7 October. Three groups – PIJ, the Mujahideen Brigades and Al-Nasser Salah al-Deen Brigades – claim to have seized Israeli hostages on that day.

Efforts to extend the temporary truce in Gaza were said to be hinging on Hamas locating those hostages. The structure was set up in 2018 to coordinate Gaza’s armed factions under a central command.

Images of Palestinian militants during training

While these groups are drawn from a broad ideological spectrum ranging from hard-line Islamist to relatively secular, all shared a willingness to use violence against Israel.

Hamas statements repeatedly stressed the theme of unity between Gaza’s disparate armed groups. The group suggested they were equal partners in the joint drills, whilst it continued to play a leading role in the plans to attack Israel. Footage from the first drill shows masked commanders in a bunker appearing to conduct the exercise, and begins with a volley of rocket fire.

It cuts to heavily armed fighters overrunning a mocked-up tank marked with an Israeli flag, detaining a crew member and dragging him away as a prisoner, as well as raiding buildings.

We know from videos and harrowing witness statements that both tactics were used to capture soldiers and target civilians on 7 October, when around 1,200 people were killed and an estimated 240 hostages were taken.

Telling the world

The second Strong Pillar drill was held almost exactly one year later.

Ayman Nofal, a commander in the Izzedine al-Qassam Brigades – the official name for Hamas’s armed wing – said the aim of the exercise on 26 December 2021 was to “affirm the unity of the resistance factions”.

He said the drills would “tell the enemy that the walls and engineering measures on the borders of Gaza will not protect them”.

Another Hamas statement said the “joint military manoeuvres” were designed to “simulate the liberation of settlements near Gaza” – which is how the group refers to Israeli communities.

The exercise was repeated on 28 December 2022, and propaganda images of fighters practising clearing buildings and overrunning tanks in what appears to be a replica of a military base were published to mark the event.

Images of Hamas capturing tank crew members

The exercises were reported on in Israel, so it’s inconceivable they were not being closely monitored by the country’s extensive intelligence agencies.

The Israel Defense Forces (IDF) have previously carried out air strikes to disrupt Hamas’s training activities. In April 2023, they bombed the site used for the first Strong Pillar drill.

Weeks before the attacks, female surveillance soldiers near the Gaza border reportedly warned of unusually high drone activity and that Hamas was training to take over observation posts with replicas of their positions.

But, according to reports in the Israeli media, they say they were ignored. Brigadier General Amir Avivi, a former IDF deputy commander in Gaza, told the BBC: “There was a lot of intelligence that they were doing this training – after all, the videos are public, and this was happening just hundreds of metres from the fence (with Israel).”

But he said while the military knew about the drills, they “didn’t see what they were training for”.

The IDF said they “eliminated” Nofal on 17 October 2023, the first senior Hamas military leader to be killed during the conflict.

Images of Hamas taking hostages

Hiding in plain sight

Hamas went to great lengths to make sure the drills were realistic.

In 2022, fighters practised storming a mock Israeli military base built just 2.6km (1.6 miles) from the Erez crossing, a route between Gaza and Israel controlled by the IDF.

BBC Verify has pinpointed the site in the far north of Gaza, just 800m (0.5 miles) from the barrier, by matching geographic features seen in the training footage to aerial images of the area. As of November 2023, the site was still visible on Bing Maps.

The training camp was within 1.6km (1 mile) of an Israeli observation tower and an elevated observation box, elements in a security barrier Israel has spent hundreds of millions of dollars constructing.

Map showing the location of a Hamas training site

The mock base is on land dug several metres below ground level, so it may not have been immediately visible to any nearby Israeli patrols – but the smoke rising from the explosions surely would have been, and the IDF is known to use aerial surveillance.

Hamas used this site to practise storming buildings, taking hostages at gunpoint and destroying security barriers.

BBC Verify has used publicly available information – including satellite imagery – to locate 14 training sites at nine different locations across Gaza.

They even trained twice at a site less than 1.6 km (1 mile) from the United Nations’ aid agency distribution centre, and which was visible in the background of an official video published by the agency in December 2022.

Map showing 14 training sites in Gaza

Land, sea and air

On 10 September 2023, the so-called joint committee room published images on its dedicated Telegram channel of men in military uniforms carrying out surveillance of military installations along the Gaza barrier.

Two days later, the fourth Strong Pillar military exercise was staged, and by 7 October, all the tactics that would be deployed in the unprecedented attack had been rehearsed.

Fighters were filmed riding in the same type of white Toyota pickup trucks which were seen roaming through southern Israel the following month.

The propaganda video shows gunmen raiding mock buildings and firing at dummy targets inside, as well as training to storm a beach using a boat and underwater divers. Israel has said it repelled attempted Hamas boat landings on its shores on 7 October.

Palestinian fighters training
The fourth and final Strong Pillar drill saw fighters training on raiding buildings (pic BBC)

However, Hamas did not publicise its training with motorcycles and paragliders as part of the Strong Pillar propaganda.

A training video posted by Hamas three days after 7 October shows fences and barriers being demolished to allow motorcycles to pass through, a tactic they used to reach communities in southern Israel. We have not identified similar earlier videos.

Footage of fighters using paragliding equipment was also not published until the 7 October attack was under way.

In a training video shared on the day of the attack, gunmen are seen landing in a mock kibbutz at an airstrip we have located to a site north of Rafah in southern Gaza.

BBC Verify established it was recorded some time before 25 August 2022, and was stored in a computer file titled Eagle Squadron, the name Hamas uses for its aerial division – suggesting the paragliders plan was in the works for over a year.

Images of Hamas using motorcycles

The element of surprise

Before 7 October, Hamas was thought to have about 30,000 fighters in the Gaza Strip, according to reports quoting IDF commanders. It was also thought that Hamas could draw on several thousands of fighters from smaller groups.

Hamas is by far the most powerful of the Palestinian armed groups, even without the support of other factions – suggesting its interest in galvanising the factions was driven by an attempt to secure broad support within Gaza at least as much as bolstering its own numbers.

The IDF has previously estimated 1,500 fighters joined the 7 October raids. The Times of Israel reported earlier this month the IDF now believes the number was closer to 3,000.

Whatever the true number, it means only a relatively small fraction of the total number of armed operatives in Gaza took part. It is not possible to verify precise numbers for how many fighters from smaller groups took part in the attack or the Strong Pillar drills.

While Hamas was building cross-faction support in the build-up to the attack, Hisham Jaber, a former Brigadier General in the Lebanese army who is now a security analyst at the Middle East Centre for Studies and Research, said he believed only Hamas was aware of the ultimate plan, and it was “probable they]asked other factions to join on the day”.

Andreas Krieg, a senior lecturer in security studies at Kings College London, told the BBC: “While there was centralised planning, execution was de-centralised, with each squad operationalising the plan as they saw fit.”

He said he had spoken to people inside Hamas who were surprised by the weakness of Israel’s defences, and assessed militants likely bypassed Israel’s surveillance technology by communicating offline.

Hugh Lovatt, a Middle East analyst at the European Council on Foreign Relations, said Israel would have been aware of the joint training drills but “reached the wrong conclusion”, assessing they amounted to the “standard” activity of paramilitary groups in the Palestinian territories, rather than being “indicative of a looming large-scale attack”.

Asked about the issues raised in this article, the Israel Defense Forces said it was “currently focused on eliminating the threat from the terrorist organisation Hamas” and questions about any potential failures “will be looked into in a later stage”.

It could be several years until Israel formally reckons with whether it missed opportunities to prevent the 7 October massacre. The ramifications for its military, intelligence services and government could be seismic.

(BBC)

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Features

Rebuild trust with people to revive economy

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by Jehan Perera

The government is facing an uphill task to rebuild the country which continues to be in a state of economic and moral decline which was evident in parliamentary proceedings last week. The initial hopes of a quick transition from the economic and moral decline that accompanied the pre-Aragalaya period ended with the accession of President Ranil Wickremesinghe to the presidency. The President made skillful use of the security forces, in the first instance, and the parliamentary majority thereafter, to restore the old order, government rule and stabilise the economy, albeit at a much lower level of economic wellbeing. But this won for him and the government the support of those sections of the population who could still live their regular lives and the international community who did not want Sri Lanka to fall prey to rival powers.

The Central Bank Governor Dr. Nandalal Weerasinghe has expressed confidence that Sri Lanka will receive the second tranche of the IMF loan before the end of the year. He has made this prediction despite the failure of the government to meet the basic IMF conditions, which include reducing the gap between revenues and expenditures. The ability to access IMF funds despite not conforming with its conditions is indicative of favoured status. The budget prepared by the government shows a widening of the chasm that are mitigated by optimistic predictions of increased tax revenues. The government has signally failed to deliver on the IMF’s “governance diagnostic” which highlighted the need for much greater efforts to tackle corruption and to be transparent in the signing of new contracts.

If social media reports and personal anecdotes are to be believed, corruption is thriving at all levels. Agreements with international companies continue to be entered into with little being known of the terms and conditions, and even the debt restructuring agreement with China continues to be a secret.

But there continues to be a belief amongst sections of the Sri Lankan population and international community alike that the present unsatisfactory governance needs to be tolerated until the country makes the transition to self-sustaining economic growth. There is concern that any change of government at the present time would jeopardise the economic stability that the country has achieved despite the unconvincing evidence to the contrary. The general population is expressing its lack of confidence in the future by fleeing abroad and giving votes of no-confidence in every public opinion poll they can.

NOT TRUSTED

Despite the government’s continued hold on undisputed power, and skillful use of its parliamentary majority and security forces to enforce governmental rule, it is not able to show that it has the backing of the majority of the general population. The government’s policies seem to have the support of the business and upper social classes whose position is that there is no better alternative at present, a view that is echoed in diplomatic circles. But this sentiment is not reflected in public opinion polls that equally consistently reveal that the government and its leadership get less than 20 percent of the support and even much less. This accounts for why the government has resolutely defied calls for the holding of local government and provincial council elections, the latter which are long overdue.

The President’s announcement that presidential and parliamentary elections will be held next year may be a recognition that the government has come to the realization that it cannot continue to justify holding on to power without obtaining a fresh people’s mandate. The proposed budget is an indication of the government’s preparation for those elections. There are efforts in it to provide benefits for different sections of the people, though whether these promises will materialize is another question due to paucity of resources. President Wickremesinghe has pledged to provide tens of thousands of farmer families with free hold title to the land they currently cultivate under state leases. The motivation to obtain the vote of people by providing them with economic benefits is one of the key features of the democratic process not only in Sri Lanka but worldwide.

However, the skillful use of state power to provide economic benefits, utilizing the parliamentary majority to come up with news laws and use of the security forces to enforce those laws are not the only ingredient for success in governance. The general population need to trust those who are in power. This trust comes from consistency in word and deed. One of the features of the present government is that deeds do not follow words. The exemplary anti-corruption legislation is being used to catch those at the lower levels of the hierarchy but those at the higher levels continue to escape. The recent Supreme Court decision that apportions blame for the economic crisis that plunged vast numbers of people into poverty has not been acted upon and there is no indication at the present time that it will be acted upon.

UNRESOLVED PROBLEM

There are two other areas where the government needs to rebuild the trust of the people. First is to convince them that the burden of economic recovery will be apportioned justly and equitably. The restructuring of the EPF and ETF pension funds which affected the poorer sections of the people adversely while the sparing of the banking (and corporate) sector may have been motivated by the fear that the collapse of the banking sector was a real possibility. However, the evidence that is now coming out, as demonstrated in Parliament by the Opposition, that huge amounts of loans taken by companies have been absorbed by the banks is unconscionable. The government needs to promise that it will rectify this and other such inequities as soon as possible, including the tax holidays to favoured companies. The recent parliamentary debates have provided the opportunity for the Opposition to make presentations that highlight the need for consistency.

The second area that needs to be addressed is the ethnic conflict in the country. This is a problem that has receded into the background of the national discourse, due to the overwhelming nature of the economic crisis. However, one of the root causes of the country’s economic crisis is that huge amounts of resources were devoted to fighting a war that need not have taken place if there had been policies that promoted inter-ethnic justice and equity. The security forces continue to extract a large part of the budget. Sri Lanka is not a unique country when it comes to having different ethnic and religious communities. Other countries have them too, but most of those countries, especially those that are economically successful, have found ways to resolve their differences through dialogue and mutual accommodation that benefits the entire society. Provincial council elections have not been held for over five years.

There is a need to convince the ethnic and religious minorities that they are a part and parcel of the polity and treated as equal citizens. The provincial council elections cannot be postponed for another two years. There is no logical basis in the President stating they will be held in the year following the presidential and parliamentary elections. The wrong that was done to the Tamils of recent Indian origin at Independence has still not been rectified. They continue to be the poorest and most neglected community in the country. An issue that is scarring the Tamil and Muslim people at the present time is the takeover of grazing lands in the east by people from outside the area. The residents of those areas have no government to protect them. This is not the way to build trust that will unify the people with the government to uplift the economy.

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Christmas and the New Year in the Seychelles…

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Mirage…the Australia lineup with frontline vocalist Manilal (fourth from left)

Although the group Mirage has been relatively quiet, in the local showbiz scene, they will certainly be missed by music lovers, and their fans, during the festive period.

They leave on Sunday, the 3rd of December, for a month long stay in probably the smallest country in Africa – the Seychelles.

The group, comprising Donald Pieries (drums/vocals), Benjy Ranabahu (bass), Thushara Rajarathna (keyboards/vocals), Thilak Perera (guitar/vocals) and Dhanushka Uyanahewa (vocals), will be at the Hilton Seychelles for two major gigs – Christmas Eve and New Year’s Eve.

They will also be entertaining guests throughout their stay at the Hilton.

Manilal Perera: Now with Mirage

The group’s male vocalist, the famous Manilal Perera, who is now very much a part of Mirage, is unable to make this trip due to prior commitments, in the local scene, as a solo artiste.

Dhanushka Uyanahewa, who is not a regular member of Mirage, replaces Manilal for this particular assignment.

Since this is their very first trip to the Seychelles, they say they are looking forward, with great excitement, to checking out that part of the world.

The Seychelles is known for its picturesque beaches, ecological diversity, dense tropical forests, and the bright blue ocean that surrounds it, all of which combine to make the archipelago world-famous.

Mirage will be back in early January, 2024, and then, a few weeks later, they will be off to Australia for a Valentine’s Day gig in Melbourne.

The band has been to Australia before but it will be the first time that the present lineup would be operating, Down Under, with Manilal Perera as their frontline vocalist.

Their female vocalist Dhanushka Uyanahewa, who will perform with Mirage in the Seychelles, will not be in the lineup to Australia.

Mirage…the Seychelles lineup with female vocalist
Dhanushka Uyanahewa (centre)

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