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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

Is it impossible to have hope?

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So, a woman has lost again to a man. I refer here to Matale District SJB MP Rohini Kaviratne having to concede her bid for Deputy Speaker of Parliament to some bod of the Pohottu Party, who, sad to say makes only a negative impression on Cass. Conversely, Kaviratne looks competent, capable, trustworthy, able to communicate and command, and most importantly speaks and conducts herself well balanced. So different from most of the MPs, particularly of the government side, who lack education, and in appearance and behaviour – decency. Please, take my word for the fact that I am not a party person. What I want in our representatives is education and decorum. And they should at least once in a while use their own heads and make decisions that are good for the country and not follow the leader through sheep like, sycophantic obedience. Of course, even more than this is self interest that prompts the way they act and decisions are taken, especially at voting times.

Rohini Kaviratne made a bold statement when, as Wednesday’s The Island noted, she told Parliament “the government was neither run by the President nor the Prime Minister but by a ‘crow.’” Utterly damning statement but totally believable. Deviousness as well as self-preservation is what motives action among most at the cost of even the entire country. And, of course, we know who the crow is – kaputu kak kak. Cass lacks words to express the contempt she feels for the black human kaputa, now apparently leading the family of kaputas. Why oh why does he not depart to his luxury nest in the US of A? No, he and his kith are the manifestation of Kuveni’s curse on the island. Strong condemnation, but justified.

You know Cass had a bold kaputa – the avian kind – coming to her balcony in front of her bedroom and cawing away this morning. Normally, she takes no notice, having developed sympathetic companionship towards these black birds as fellow creatures, after reading Elmo Jayawardena’s Kakiyan. She felt sorry for the crow who cawed to her because his name has been taken to epithet a politico who landed the entire country in such a mess. And he is bold enough to attend Parliament. Bravado in the face of detestation by the majority of Sri Lankans! Cass did not watch afternoon TV news but was told father and son, and probably elder brother and his son attended Parliamentary sessions today – Wednesday May 18. May their tribe decrease is the common prayer; may curses rain on them. Cass recognises the gravity of what she says, but reiterates it all.

I am sure Nihal Seneviratne, who recently and in 2019, shared with us readers his experiences in Parliament, moaned the fact that our legislature always lacked enough women representation. Now, he must be extra disappointed that political allegiance to a party deprived Sri Lanka of the chance of bringing to the forefront a capable woman. Women usually do better than men, judging by instances worldwide that show they are more honest and committed to country and society. The two examples of Heads of Government in our country were far from totally dedicated and commitment to country. But the first head did show allegiance to Ceylon/Sri Lanka in fair measure.

As my neighbour moaned recently: “They won’t allow an old person like me, after serving the country selflessly for long, to die in peace.” Heard of another woman in her late 80s needing medical treatment, mentally affected as she was with utter consternation at the state of the country. One wonders how long we can be resilient, beset on every side by dire problems. But our new Prime Minister was honest enough to voice his fears that we will have to go through much more hardship before life for all Sri Lankans improves.

Thus, my choice of pessimistic prediction as my title. Will we be able to hope for better times? Time will be taken but is it possible to have even a slight glimmer of hope for improvement?

There is much debate about the appointment of Ranil W as PM. We admire him for his knowledge and presence. But the greatest fear is he will defend wrong doers in the R family. Let him be wise, fair and put country before saving others’ skins. He has to be praised for taking on the responsibility of leading the country to solvency. He said he will see that every Sri Lankan has three meals a day. May all the devas help him! The SJB, though it refuses to serve under a R Prez, has offered itself to assist in rebuilding the nation. Eran, Harsha, and so many others must be given the chance to help turn poor wonderful Sri Lanka around. And the dedicated protestors, more so those in Gotagogama, still continue asking for changes in government. Bless them is all Cass can say at this moment.

Goodbye for another week. hoping things will turn less gloomy, if brightness is impossible as of now.

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Features

Lives of journalists increasingly on the firing line

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Since the year 2000 some 45 journalists have been killed in the conflict-ridden regions of Palestine and senior Al Jazeera journalist Shireen Abu Akleh was the latest such victim. She was killed recently in a hail of bullets during an Israeli military raid in the contested West Bank. She was killed in cold blood even as she donned her jacket with the word ‘PRESS’ emblazoned on it.

While claims and counter-claims are being made on the Akleh killing among some of the main parties to the Middle East conflict, the Israeli police did not do their state any good by brutally assaulting scores of funeral mourners who were carrying the body of Akleh from the hospital where she was being treated to the location where her last rites were to be conducted in East Jerusalem.

The impartial observer could agree with the assessment that ‘disproportionate force’ was used on the mourning civilians. If the Israeli government’s position is that strong-arm tactics are not usually favoured by it in the resolution conflictual situations, the attack on the mourners tended to strongly belie such claims. TV footage of the incident made it plain that brazen, unprovoked force was used on the mourners. Such use of force is decried by the impartial commentator.

As for the killing of Akleh, the position taken by the UN Security Council could be accepted that “an immediate, thorough, transparent and impartial investigation” must be conducted on it. Hopefully, an international body acceptable to the Palestinian side and other relevant stakeholders would be entrusted this responsibility and the wrong-doers swiftly brought to justice.

Among other things, the relevant institution, may be the International Criminal Court, should aim at taking urgent steps to end the culture of impunity that has grown around the unleashing of state terror over the years. Journalists around the world are chief among those who have been killed in cold blood by state terrorists and other criminal elements who fear the truth.

The more a journalist is committed to revealing the truth on matters of crucial importance to publics, the more is she or he feared by those sections that have a vested interest in concealing such vital disclosures. This accounts for the killing of Shireen Abu Akleh, for instance.

Such killings are of course not unfamiliar to us in Sri Lanka. Over the decades quite a few local journalists have been killed or been caused to disappear by criminal elements usually acting in league with governments. The whole truth behind these killings is yet to be brought to light while the killers have been allowed to go scot-free and roam at large. These killings are further proof that Sri Lanka is at best a façade democracy.

It is doubtful whether the true value of a committed journalist has been fully realized by states and publics the world over. It cannot be stressed enough that the journalist on the spot, and she alone, writes ‘the first draft of history’. Commentaries that follow from other quarters on a crisis situation, for example, are usually elaborations that build on the foundational factual information revealed by the journalist. Minus the principal facts reported by the journalist no formal history-writing is ever possible.

Over the decades the journalists’ death toll has been increasingly staggering. Over the last 30 years, 2150 journalists and media workers have been killed in the world’s conflict and war zones. International media reports indicate that this figure includes the killing of 23 journalists in Ukraine, since the Russian invasion began, and the slaying of 11 journalists, reporting on the doings of drug cartels in Mexico.

Unfortunately, there has been no notable international public outcry against these killings of journalists. It is little realized that the world is the poorer for the killing of these truth-seekers who are putting their lives on the firing line for the greater good of peoples everywhere. It is inadequately realized that the public-spirited journalist too helps in saving lives; inasmuch as a duty-conscious physician does.

For example, when a journalist blows the lid off corrupt deals in public institutions, she contributes immeasurably towards the general good by helping to rid the public sector of irregularities, since the latter sector, when effectively operational, has a huge bearing on the wellbeing of the people. Accordingly, a public would be disempowering itself by turning a blind eye on the killing of journalists. Essentially, journalists everywhere need to be increasingly empowered and the world community is conscience-bound to consider ways of achieving this. Bringing offending states to justice is a pressing need that could no longer be neglected.

The Akleh killing cannot be focused on in isolation from the wasting Middle East conflict. The latter has grown in brutality and inhumanity over the years and the cold-blooded slaying of the journalist needs to be seen as a disquieting by-product of this larger conflict. The need to turn Spears into Ploughshares in the Middle East is long overdue and unless and until ways are worked out by the principal antagonists to the conflict and the international community to better manage the conflict, the bloodletting in the region is unlikely to abate any time soon.

The perspective to be placed on the conflict is to view the principal parties to the problem, the Palestinians and the Israelis, as both having been wronged in the course of history. The Palestinians are a dispossessed and displaced community and so are the Israelis. The need is considerable to fine-hone the two-state solution. There is need for a new round of serious negotiations and the UN is duty-bound to initiate this process.

Meanwhile, Israel is doing well to normalize relations with some states of the Arab world and this is the way to go. Ostracization of Israel by Arab states and their backers has clearly failed to produce any positive results on the ground and the players concerned will be helping to ease the conflict by placing their relations on a pragmatic footing.

The US is duty-bound to enter into a closer rapport with Israel on the need for the latter to act with greater restraint in its treatment of the Palestinian community. A tough law and order approach by Israel, for instance, to issues in the Palestinian territories is clearly proving counter-productive. The central problem in the Middle East is political in nature and it calls for a negotiated political solution. This, Israel and the US would need to bear in mind.

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Doing it differently, as a dancer

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Dancing is an art, they say, and this could be developed further, only by an artist with a real artistic mind-set. He must be of an innovative mind – find new ways of doing things, and doing it differently

According to Stephanie Kothalawala – an extremely talented dancer herself – Haski Iddagoda, who has won the hearts of dance enthusiasts, could be introduced as a dancer right on top of this field.

Stephanie

had a chat with Haski, last week, and sent us the following interview:

* How did you start your dancing career?

Believe me, it was a girl, working with me, at office, who persuaded me to take to dancing, in a big way, and got me involved in events, connected with dancing. At the beginning, I never had an idea of what dancing, on stage, is all about. I was a bit shy, but I decided to take up the challenge, and I made my debut at an event, held at Bishop’s College.

* Did you attend dancing classes in order to fine-tune your movements?

Yes, of course, and the start was in 2010 – at dancing classes held at the Colombo Aesthetic Resort.

* What made you chose dancing as a career?

It all came to mind when I checked out the dancing programmes, on TV. After my first dancing programme, on a TV reality show, dancing became my passion. It gave me happiness, and freedom. Also, I got to know so many important people, around the country, via dancing.

* How is your dancing schedule progressing these days?

Due to the current situation, in the country, everything has been curtailed. However, we do a few programmes, and when the scene is back to normal, I’m sure there will be lots of dance happenings.

* What are your achievements, in the dancing scene, so far?

I have won a Sarasavi Award. I believe my top achievement is the repertoire of movements I have as a dancer. To be a top class dancer is not easy…it’s hard work. Let’s say my best achievement is that I’ve have made a name, for myself, as a dancer.

* What is your opinion about reality programmes?

Well, reality programmes give you the opportunity to showcase your talents – as a dancer, singer, etc. It’s an opportunity for you to hit the big time, but you’ve got to be talented, to be recognised. I danced with actress Chatu Rajapaksa at the Hiru Mega Star Season 3, on TV.

* Do you have your own dancing team?

Not yet, but I have performed with many dance troupes.

* What is your favourite dancing style?

I like the style of my first trainer, Sanjeewa Sampath, who was seen in Derana City of Dance. His style is called lyrical hip-hop. You need body flexibility for that type of dance.

* Why do you like this type of dancing?

I like to present a nice dancing act, something different, after studying it.

* How would you describe dancing?

To me, dancing is a valuable exercise for the body, and for giving happiness to your mind. I’m not referring to the kind of dance one does at a wedding, or party, but if you properly learn the art of dancing, it will certainly bring you lots of fun and excitement, and happiness, as well. I love dancing.

* Have you taught your dancing skills to others?

Yes, I have given my expertise to others and they have benefited a great deal. However, some of them seem to have forgotten my contribution towards their success.

* As a dancer, what has been your biggest weakness?

Let’s say, trusting people too much. In the end, I’m faced with obstacles and I cannot fulfill the end product.

* Are you a professional dancer?

Yes, I work as a professional dancer, but due to the current situation in the country, I want to now concentrate on my own fashion design and costume business.

* If you had not taken to dancing, what would have been your career now?

I followed a hotel management course, so, probably, I would have been involved in the hotel trade.

* What are your future plans where dancing is concerned?

To be Sri Lanka’s No.1 dancer, and to share my experience with the young generation.

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