Supreme Court rules foreign divorces must meet local law

Colombo, March 20 (Daily Mirror) - In a significant ruling, the Supreme Court of Sri Lanka has held that the recognition of a foreign judgement granting a divorce in Sri Lanka must strictly comply with domestic statutory provisions, thereby limiting the grounds for divorce to adultery after marriage, malicious desertion, or incurable impotence at the time of marriage.

The Court further clarified the legal framework governing the recognition of foreign divorce decrees under Sri Lankan law, emphasizing strict compliance with statutory provisions such as Section 19(2) of the Marriage Registration Ordinance. Accordingly, the permissible grounds for divorce are confined to adultery after marriage, malicious desertion, or incurable impotence at the time of marriage.

The case concerned a couple married in Colombo in 2008 who later relocated to the United Kingdom. The wife instituted divorce proceedings before the Colombo District Court citing adultery and constructive malicious desertion. However, the husband contested the action, asserting that the marriage had already been dissolved by an ex-parte decree issued by the County Court of Manchester in the UK, and sought dismissal of the case at the outset.

The District Court upheld the husband’s position, ruling that the marriage had been legally dissolved and dismissing both the wife’s action and the husband’s cross-claim. On appeal, the Colombo Civil Appellate High Court overturned this finding, holding that the UK court lacked jurisdiction, as the wife’s domicile followed that of her husband, which remained in Sri Lanka.

Subsequently, the husband sought leave to appeal before the Supreme Court, challenging the High Court’s determination.

In a detailed analysis, Justice Janak De Silva examined the principles of private international law applicable in Sri Lanka, drawing distinctions between recognition and enforcement of foreign judgements. The Court also considered factors such as domicile, habitual residence, and submission to jurisdiction in assessing the competence of foreign courts.

The Court further noted the relevance of the Reciprocal Recognition, Registration and Enforcement of Foreign Judgements Act No. 49 of 2024, while emphasizing that the dispute must be resolved in accordance with the law as it stood at the time the action was instituted in 2012.

Quoting the statutory requirement, Justice De Silva observed:

“Section 19(2) of the Ordinance mandates that the cause of action on which the divorce was granted shall be either adultery subsequent to marriage, or of malicious desertion, or of incurable impotence at the time of such marriage. In my view, a foreign judgement granting a divorce must comply with this provision.”

Justices Kumudini Wickremasinghe and Menaka Wijesundera agreed with the judgement.

The Supreme Court ultimately set aside the decisions of both lower courts, finding that they had erred in determining preliminary issues. The Court directed the Colombo District Court to proceed with the trial expeditiously and to adjudicate all issues in light of the legal principles outlined in the judgement.

President’s Counsel Saliya Pieris with Yohan Peiris and Andrea Wijewansha appeared for the defendant husband. Counsel Chandana Dias with K. Chathurika Govinnage and Maheesha Dushyanthi appeared for the Plaintiff wife.