Everything else.. What is marriage according to law?

What is marriage according to law?

2021 Oct 14

Law is Light is a series of trilingual legal discussions to shed light on the law. The Latin maxim “ignorantia legis neminem excusat” translates to ignorance 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 sixth discussion, the programme focused on “Laws on Marriage” to provide an understanding of the rights and duties available to individuals.

The discussion featured Attorney-at-Law Mr. Nisal Kohona. He holds a LL.B from the University of London and he is the Chairman of Veritas Academia.

What is marriage according to law? What are the laws pertaining to different marriages?

Marriage is a contract made in conjunction with the law, where a free man and a free woman reciprocally engage to live in the union between husband and wife.

The Sri Lankan General Law of Marriage has been considerably influenced by RDL and the English law. The Marriage Registration Ordinance (MRO) no.19 of 1907 states the laws pertaining to marriage under general law. The Ordinance applies to marriages between individuals of different ethnic and religious communities. Kandyan Sinhalese may choose to be governed by the general law or Kandyan law. The Ordinance does not govern marriages contracted between Muslims as the provisions of MRO do not apply.

What are the types of valid marriage?

Registered marriage:
In terms of general law (MRO), any citizen other than those who follow the Muslim faith can enter into a marriage under this Ordinance as stated in the preamble.

The Registrar shall follow the steps stated in S.23 to S.36 of the MRO. The issuance of the certificate of marriage is given in S.26 of the MRO. Thereupon a marriage under MRO will be constituted as valid.

S.23 (1) – If both parties have resided in Sri Lanka for ten days, and if both parties have dwelt in the same division, one of the parties may give notice to the registrar of the division in which they have dwelt.

S.23 (2) – If not within the same division, each must give notice to the registrar of the division in which he or she has dwelt.

S.23 (3) –  If one party is not residing in SL, the other party must give notice to the registrar.

S.23 (4) – If neither party is a resident of SL, notice shall be given and such party must reside in Sri Lanka for not less than 4 days prior to the marriage.

S.25 – After receiving such notices, the registrar shall enter the details in the ‘marriage notice book’ and such is considered to be publication of the notice, and then the Registrar shall issue the certificate of marriage in accordance with S.26.

Customary marriages:
The courts have recognised customary marriages contracted according to customary rites and practices. If all the essentials of the customary marriage are in conformity, it is possible to contract a valid marriage outside the purview of the statute.

Is registering the marriage a vital requirement?

Registration of marriage is not mandatory under the Ordinance. An entry made in the marriage register is the best evidence of the marriage. The courts do consider the information that was submitted in the registrar book (S.41 of the Marriage Registration Ordinance). The law recognises a rebuttable presumption of marriage by habit and repute (Cohabitation). Customary marriages in various ethnicities, and the rites and rituals that they follow, have been accepted as valid despite the fact that they are unregistered.

Who can contract a marriage? Age.. capacity.. prohibited degrees of relationship

In S.15, prior to 1995, for males it was 16 years of age and for females it was 12 years of age. However, after the amendment act no.18 of 1995, both parties must have completed 18 years. This was affirmed in the case of (Thiyagarajah Vs. Kurukkal (1923) 25 NLR 69) – In this case the girl was 11 years and 1 month when she entered into the marriage. The courts held that the marriage will be null and void. (Gunaratnam Vs. Registrar General)

S.16 deals with the prohibited degrees of marriage in the following situations:

a. Where either party is a direct descendant of the other.

b. Between a sister and a brother (Either half blood or full blood).

c. Between parents and their step children.

S.18 states that no marriage is valid where either party has contracted a prior marriage, until it has been legally dissolved or declared void. This was affirmed in the case of Hettiarachchi Vs. Hettiarachchi and others (2004) 3 SLR 116.

S.17 of MRO states that any marriage or cohabitation between parties standing towards each other in any of the prohibited degrees of relationship shall be deemed to be an offence, and shall be publishable with imprisonment, simple or rigorous, for any period not exceeding one year.

What is cohabitation?

This is an instance where two parties have been living together as husband and wife and have been recognised as a married couple by their relatives and friends. It is merely based on a presumption until such has been rebutted.

Habit – refers to the parties living together as husband and wife for a period of time. Repute – refers to their acceptance by the society as a married couple.

When a man and woman have lived together as husband and wife, the law will presume unless and until the contrary is proven that they were living together in consequence of marriage and not in a state of concubinage. It must be noted that cohabitation by repute and habit is based on merely a presumption and does not create a valid marriage by simply justifying that they are living together (Need to show more indication that they lived as a couple). The burden of rebutting the presumption rests on the person who alleges that there is no lawful marriage and that they exist as concubines. In Fernando Vs. Dabarera, both the parties cohabiting were dead, and there was a need to see if such parties were married as there was no evidence of registration of their marriage. The only evidence that existed was the evidence of how they treated each other. Courts held that marriage by habit and repute could be recognised by law.

The presumption of habit and repute cannot be raised in the case of Kandyan parties. The KMDA specifically states that registration is compulsory under such Act and that a marriage that is not registered either under MRO or KMDA is void.

What is customary marriage?

A customary marriage is a marriage contracted according to traditional custom and is recognised by customs of such country. There are no specific legal provisions stated in the MRO as they are mostly recognised by case law. Customary marriages can be conducted according to the rituals usually followed by those of the same ethnicity, religion or area. Customary marriages are governed by customary laws that have been established in Sri Lanka. Customary laws include the KMDA for Kandyans, MMDA for Mulisms and Tesawalami for Jaffna Tamils. Any other ethnicities can enter into a marriage under the MRO.

What are the different marriage laws in Sri Lanka?

There are customary laws if any parties do fall within the ambit or the scope of such Act. They can either enter into a marriage under such customary law or under the General Law of MRO. Customary marriages are governed by customary laws. An example is where the KMDA allows any party who falls within the ambit of this Act to register under the MRO as well, but a marriage cannot be valid until such marriage is registered.

Can a person choose which law to be married under?

Yes of course, if the customary Act allows any such person who is a follower of such faith to be married and register under any laws other than such customary laws, then they can do so.

There can be instances where the other party entering into the marriage might not fall within the scope of such customary law. Therefore a need might exist where any person should be free to select under which law they should register their marriage.

Kandyan Marriage

Can we discuss Kandyan marriage laws?  Do both individuals have to be Kandyan?

The KMDA applies to Kandyan marriages and divorces as stated in the preamble. KMDA allows any Kandyan who was a resident of the Kandyan province as at 1850 to enter into a marriage under this law or any person who is a descendent of the said category. Therefore it is important that both parties are deemed as Kandyans in order for the KMDA to apply. However, leverage has been given to the parties to register their marriage under the KMDA or the MRO.

Is registration compulsory for Kandyan?

In S.3 (1) (a), it states that a marriage between persons subject to Kandyan law, shall be solemnised and registered under this Act or under the MRO.

S.3 (1) (b) states that any such marriage which is not so solemnised and registered shall be invalid. Therefore registration is compulsory if either party is entering into a marriage under the KMDA. However even a Kandyan registered under the MRO can still fall within the ambit of the KMDA as the KMDA allows such registration.

Do we still have the practice of one woman marrying more than one man under Kandyan law?

Kandyan law does not recognise polygamy and polyandry. This will amount to bigamy just as in ordinary law it will amount to a criminal offence.

Can a Kandyan opt out of the Kandyan Marriage Act and marry under the general law?

Yes they can; they can register themselves under the MRO, and they will be governed by the laws pertaining to marriage and divorce under the MRO.

Zeenath Zakir

Pro bono Secretary 2020-2021

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