Written by Devuni Goonewardene
12 Sep, 2018 | 5:36 pm
Colombo (News 1st) – A consultation on introducing “no-fault divorces”, which could streamline the slow and confrontational procedures couples face when separating, is being prepared by the United Kingdom government.
Under the Matrimonial Causes Act 1973 in England and Wales, anyone seeking a divorce must either prove their partner is at fault through adultery, desertion or unreasonable behaviour, or , alternatively, if both sides agree, they can part after two years of separation. In the absence of consent or evidence of fault, applicants must wait until they have been living apart for five years.
Demands for change have mounted after the Tini Owens case. The supreme court ruled in July that the 68-year-old could not divorce her husband and escape her loveless marriage until a period of five years had elapsed. She and her husband, Hugh Owens, had been living separate lives since 2015.
Reform of the General Marriage Ordinance of Sri Lanka to introduce the concept of irretrievable breakdown of marriage was proposed as far back as 1959. It also introduced the concept of matrimonial courts. However the proposals were never adopted. The Law Commission of Sri Lanka proposed similar reforms in 2005, making public a draft law – the Draft Matrimonial Causes Bill. Recently, a Committee convened by the Ministry of Justice proposed, as recommended by the Law Commission, that a single ground for divorce of irretrievable breakdown of the marriage replace the current fault based grounds for divorce in the General Marriage Ordinance.
In our country we cannot choose to dissolve a marriage by citing irreconcilable differences. We can only seek a divorce by blaming the other person of adultery, impotency or malicious desertion. It is remarkable that those who get married are unaware of the process involved in getting out of the marriage. It has taken people by surprise to realise that, unlike placing a signature and being married, divorce insists on legal papers, a courtroom, a blame game and lawyers’ fees.
In an attempt to escape the experience of getting divorced, litigants in the District Courts, some lawyers and judges recognise a practice of ‘uncontested’ divorce. This is where spouses, both with the intent of avoiding the agony to come, agree that one will file the case and the other will not contest it, thereby leaving the judge with little option but to grant the divorce on the basis that basic grounds for divorce are technically satisfied. To ensure that there is no contest, the least objectionable ground of malicious desertion is usually put forward.
Even though our divorce law is unique and has not been derived directly from the law of England and Wales, we could possibly say as a Nation who was under the colonial leaders, even they are taking steps to refine the marriage law which creates more animosity than goodwill among partners.
Lord Chancellor and Secretary of State for Justice MP David Gauke stated to The Times that “what we have at the moment creates more antagonism than we really need”. He added that “I don’t think the best way of helping the institution of marriage is by putting bureaucratic hurdles in the way of a divorce.”
There has been growing pressure from campaign groups and divorce lawyers who have been pressing for the system to be modernised. They argue that the current adversarial system forces couples to blame one another if they wish to speed up divorce.
Claire Blakemore, a solicitor with a law firm in U.K, states to the Guardian that “This consultation signals a hugely welcome change to our divorce law. Our clients are often totally unable to understand why they must apportion blame and make their separation more acrimonious. Bringing divorce law up to date to meet the needs of modern families is essential.”
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