The Sri Lankan General Law of Marriage: Dutch, Victorian, or Indigenous ?

Sharya Scharenguivel
aculty of Law !niversity of "olo#$o%
&ackground The Sri Lankan General Law of marriage has been considerably influenced by the Roman Dutch law and the English law. To a large extent the law remains unreformed and is in many ways not compatible with modern notions relating to marriage and the termination of marriage. The General law is accessed not only by the low country Sinhala people who as a result of our colonial history do not ha e a legally recogni!ed customary law but also by Tamils "whether they are go erned by the Thesawalamai or not# and by $andyan who ha e a choice of marrying under the $andyan law or the General law. %n relation to the Tamils go erned by the Thesawalamai by and large the Thesawalamai impacts only on property and succession rights of married persons. The re&uirements relating to capacity to marry' guardianship and custody is go erned by the General Law. Methodology (spects of the Sri Lankan law of marriage will be examined with a iew to ascertaining whether the General Law of marriage is Dutch' )ictorian or indigenous. *e will also consider whether the lack of agitation for reform can be attributed to the fact that the law accords with our current sense of alues and is therefore indigenous. +arriage will be looked at from the point of iew of contracting a marriage' the incidents arising out of marriage and terminating a marriage. %n each of these spheres it will be noted that the marriage laws are largely Dutch or )ictorian. The Roman Dutch Law relating to marriage was largely a se enteenth or eighteenth century law. Some of its inherent features must be understood in the context of that period and its rele ance today must be &uestioned. This system saw the woman as the subordinate partner in the marriage and ested both decisions in relation to the marriage and children in the male spouse. ( corollary was that of seeing the husband as the primary financial supporter of the marriage. This was reinforced by the early ,ritish colonial legislation which imposed criminal liability on a husband who failed to support the wife.The recei ed English law of the eighteenth century and the nineteenth century was concerned with the emancipation of the married woman. %t sought to gi e the married woman control o er her separate property and a distinct legal personality. -et the issue that confronts the Sri legal system today is whether the married woman has achie ed substantial e&uality and in some instances whether she has been denied both formal and substantial e&uality. Does she for example ha e the same opportunities to engage in economic acti ities which will

generate the same type of income as is generated by her husband/ 0r does her role as care gi er of the children depri e her of those opportunities. %s the separate property regime which was a response to protecting the earnings of a select group of women in .1th century England an appropriate model for Sri Lanka today/ Should Sri Lanka be looking at some indigenous concepts in formulating her laws relating to matrimonial property/ These are some of the issues which will be looked at in this paper. Di orce in the General Law is based on the ideal that marriage is a life long commitment which can only be dissol ed exceptionally on the proof of a serious matrimonial fault. Suspension of the marriage is a recogni!ed form of relief and the iability of the marriage is not a consideration. The 2rocedural laws are ad ersarial and the process is essentially acrimonious where success will depend on whether one party has succeeded in pro ing that the other party has committed a serious matrimonial fault. The uncontested di orce is a response to this fault based system where one party agrees not to contest the action which then results in the court holding that the alleged matrimonial fault has been committed. %n essence this is a di orce by mutual consent where the property and custodial conse&uences ha e been determined out of court and the courts role is a formal one. 0nce again the &uestion that has to be asked is whether the indigenous systems which deemphasi!e fault and stress on conciliatory or mediatory measures are better options. 'utco#e The expected out come of this research is that of demonstrating that the law relating to marriage and di orce in the General Law is based on anti&uated notions of marriage and does not accord with current notions of marriage as a relationship between e&uals. 3or does it accord with the well accepted iew that a non functional marriage marriage must be set aside with minimum distress to the parties. Legislation and case law will be the principal sources that will be examined 4ommissioned reports and other reports will be examined and commented on whene er appropriate. (eferences Cretney S Family law in the Twentieth Century (Oxford 2003) Cretney and Proberts Family law (London 200 ) !a"y #n #$$ount of the %nterior of Ceylon and its %nhabitants (&'2&) Sa"itri (oonese)ere *uslim Personal Law in Sri Lan)a (*+,#F 2000) (oonese)ere The Le-al Status of the Female in the Sri Lan)a law of Family relations (Colombo & '0) *S .aldeen The *uslim law of *arria-e !i"or$e and *aintenan$e in Sri Lan)a /(Famys & 0) Chulani 0odi)ara *uslim Family law %n Sri Lan)a (*+,#F & ) 1adara2a Le-al System of Ceylon in its 3istori$al Settin-( Leiden & 42) 1a-endra *atrimonial Pro5erty and (ender %ne6uality (Colombo 200') Sawyers7 !i-est on the 0andyan law (&'28) (re5rint & 2& Telli5allai Ceylon))

Tambiah93+ The Laws and Customs of the Tamils of .affna (&st ed Times of Ceylon) 3+ Tambiah Sinhala Law and Custom ( Colombo & 8')

Marriage in Sri Lanka

The minimum age of marriage in Sri Lanka is 18. Americans planning to marry in Sri Lanka should be prepared to provide the following: riginal !irth "ertificate #alid $assport %f either party was previously married& an original divorce decree %f either party was widowed& an original death certificate

Americans should also be aware that Sri Lankan law re'uires foreigners to spend at least four days (three nights) in Sri Lanka prior to notifying a marriage registrar of intended marriage. nce the registrar has been notified of the intent to wed& there is an additional waiting period of at least fourteen days prior to the date of the actual marriage registration. The local marriage registrar may grant special permission for same day marriages in some circumstances. American citi*ens wishing to marry under the special permission must still prove that they have been physically present in Sri Lanka at least four days (three nights) prior to the marriage. They may apply for the same day marriage registration at the marriage registrar+s office. To be legally recogni*ed under Sri Lankan law& marriages must be registered with a ,arriage -egistrars ffice within your area of residence or the .ivisional Secretariat of your area.

)MIL* L)+S S(I L),-) The body of law relating to marriage consists of the general law' customary law and personal law. Tamils are go erned by the general law in most marriage6related matters' whereas $andyan Sinhalese can choose to be go erned by the general law or their customary laws. +uslims are go erned by +uslim personal law. M)((I)G. L)+ S(I L),-) The .789 +arriage Registration 0rdinance constitutes the general law on marriage in Sri Lanka. The ordinance applies to marriage between Tamils and between indi iduals of differing ethic and religious communities. $andyan Sinhalese may choose to be go erned by the general law or $andyan law. The ordinance does not go ern marriages contracted between +uslims. M)((I)G. )G. (./!I(.M.,TS 2ursuant to a .77: amendment to the ordinance' the minimum age of marriage was raised to .1 for both men and women. ( subse&uent pro ision' howe er' authori!es parents to consent to a marriage in ol ing a minor. %f a parent unreasonably withholds consent' a

court may authori!e the marriage. 4ourts ha e held' howe er' that a parent<s refusal to gi e consent will only be o erruled if the court is satis6 fied that the refusal is without cause and contrary to the interest of the minor. Despite the re&uirement of parental consent for a minor to marry' the ordinance pro ides that lack of proof of such consent does not render in alid marriages registered under the ordinance. This exception does not apply to customary marriages because such marriages would not ha e satisfied the registration re&uirement. =owe er' courts ha e held in cases of unregistered marriages as well that want of consent would not in alidate such a marriage after it had been consummated. 0('1I&IT.D M)((I)G.S The ordinance renders marriage between two indi iduals within prohibited degrees of kinship oid. +arriage or cohabitation between such parties is punishable with imprisonment. 2ro isions in the penal code regarding incest further enhance the penalty for such marriages. The ordinance prohibits polygamy. M)((I)G. (.GIST()TI', Registration of marriages is not mandatory under the ordinance. (n entry made in the marriage register is simply the >best e idence> of the marriage. Thus' customary marriages' including those solemni!ed according to =indu' ,uddhist and 4hristian rites and rituals' ha e been accepted as alid despite the fact that they are unregistered. The law recogni!es a rebuttable presumption of marriage by habit and repute. Thus' upon proof that a man and woman ha e cohabited as husband and wife' the law presumes that they are li ing together in a alid marriage' unless the contrary is pro ed. 4ourts ha e emphasi!ed that cohabitation does not conclusi ely pro e the fact of marriage' thus emphasi!ing the rebuttable nature of the presumption. &I,,), DIG) M)((I)G.S *hether the marriage is binna or diga depends on the intention of the parties. ( marriage is presumed to be diga if there is no e idence as to its character. The act specifies that a alid $andyan marriage renders legitimate any children born to the parties prior to such a marriage. This means that any premarital offspring are automatically legitimi!ed if the parents subse&uently enter into a alid $andyan marriage. 4hildren so legitimi!ed are entitled to the same rights as those born subse&uent to a marriage. (.L.V),T L)+S ),D 0'LI"I.S .. +arriage Registration 0rdinance' .789? and +arriage Registration "(mendment# (ct' .77: 5. $andyan +arriage and Di orce (ct' .7:5? and $andyan +arriage and Di orce "(mendment# (ct' .77: ;. +uslim +arriage and Di orce (ct' .7:. @. 4i il 2rocedure 4ode' .117 :. +aintenance (ct' .777 A. (doption of 4hildren 0rdinance' .7@.? amended in .775

M!SLIM M)((I)G. ),D DIV'(". )"T The +uslim +arriage and Di orce (ct go erns marriage between +uslim parties. The act specifies some re&uirements for a alid marriage? those re&uirements left unspecified are go erned by the law of the sect to which the parties belong. The act does not specify a minimum age for alid marriage. =owe er' where a marriage in ol es a girl below age .5' the act re&uires consent of the Bua!i "similar to a Cudicial officer' though legal training is not re&uired# to register the marriage. (lso'under %slamic law'a minor girl has the right to repudiate the marriage upon attaining puberty. (lthough courts ha e recogni!ed this right' the issue of whether it is an unconditional right or a ailable only when the marriage can be pro ed to be against the child<s interest remains open to debate. Durthermore' under the penal code' sexual intercourse with one<s wife who is under age .5 constitutes rape' though this pro ision has not been consistently applied by the courts. %n +uslim law'prohibited relationships in marriage include affinity'consanguinity and fosterage "i.e.'if a woman has suckled another<s child' that child cannot contract a marriage with the woman or her natural children#. The +uslim +arriage and Di orce (ct re&uires the consent of a wali "guardian# to the marriage for women of the Shafi sect' though the Bua!i may dispense with the consent re&uirement if it is unreasonably withheld. The act also re&uires that the wali communicate the bride<s consent to the marriage to the Bua!i' though it does not pro ide for a mechanism to actually manifest such 4onsent. ( woman of the =anafi sect is permitted to enter into a marriage contract on her own' as she is freed from guardianship upon attaining puberty. 2olygamy is permitted under the +uslim +arriage and Di orce (ct. The act imposes an obligation on the husband to gi e notice to the Bua!i of his intention to contract a subse&uent marriage. 4ourts ha e stressed that co6wi es must recei e e&ual treatment in relation to material goods' though the Bua!i ha e no duty to determine the actual ability of the husband to pro ide for his wi es e&ually and Custly. %n an attempt to curb the practice of non6+uslim males con erting to %slam merely to circum ent stringent di orce laws under the general law' a .771 landmark Supreme 4ourt decision held that a second marriage upon such con ersion would be oid' unless the first marriage was legally dissol ed. 3on6registration of a marriage does not affect alidity under the +uslim +arriage and Di orce (ct. =owe er' the act does impose a duty to register a marriage on specified persons' the failure of which constitutes an offense.@1@

L)+S G'V.(,I,G T)MILS The +arriage Registration 0rdinance go erns marriage among Tamils. DIV'(". L)+S The +arriage Registration 0rdinance and the 4i il 2rocedure 4ode constitute the general law on di orce.@1: The pro isions of the ordinance firmly establish di orce as faultbased and case law has reaffirmed this concept. Grounds for di orce under the ordinance are the followingE .. adultery? 5. malicious desertion? and ;. incurable impotence at the time of marriage. 4ruelty is not a ground for di orce' although it may be a factor in determining malicious desertion. 2hysical illtreatment per se is also not a ground for di orce under the general law' but it is a cause for legal separation. %n cases of adultery'courts ha e re&uired proof beyond reasonable doubt as the standard of proof?they also ha e re&uired the specification of the date and place of the act. (n aggrie ed spouse may reco er damages from the person with whom adultery is committed. +alicious desertion has been Cudicially defined as >the deliberate and unconscientious'definite and final repudiation of the obligations of the marriage state F and it clearly implies something in the nature of a wicked mind.> The intent to terminate the marital relationship and the actual termination of cohabitation are both necessary elements. The law also recogni!es constructi e desertion'whereby the innocent spouse is forced to lea e because of the beha ior of the other spouse. %n addition to the grounds for di orce under the +arriage Registration 0rdinance' the 4i il 2rocedure 4ode permits either spouse to petition for dissolution of marriage two years from the date of a decree of Cudicial separation or' notwithstanding such decree'where there has been a separation a mensa et thoro "from bed and board# for se en years.@75 =owe er' courts ha e not been consistent in applying this pro ision'and the current law holds that separation alone is an insufficient ground for di orce.@7; The general law on di orce as it stands is thus firmly fault based. =owe er' the law is currently under scrutiny and a draft +atrimonial 4auses (ct' which explicitly introduces irretrie able breakdown of marriage as a new ground of di orce' is under consideration. L)+S G'V.(,I,G -),D*), SI,1)L.S. 2ersons subCect to $andyan law may be married under the +arriage Registration 0rdinance or the .7:5 $andyan +arriage and Di orce (ct. 2ursuant to a .77: amendment to the $andyan +arriage and Di orce (ct' the minimum age of marriage was raised to .1 for both sexes. +arriages in iolation of this age re&uirement are oid unless the parties cohabit as husband and wife for one year after attaining the legal age' or if a child is born within marriage before either party has attained the legal age. The act prohibits marriage between certain closely related indi iduals. %t renders a second marriage in alid if the first is not legally dissol ed. (s opposed to the general law<s lack of a registration re&uirement' registration is a crucial

aspect of the act. The conse&uences flowing from a $andyan marriage depend on whether the marriage is contracted in diga or binna. %n a diga marriage' which deri es from a patriarchal system' the bridegroom brings his bride to his own house or that of his parents'and she becomes a member of his family for the duration of the marriage.@AA %n a binna marriage' which is perhaps older in origin and deri es from a matriarchal system' the husband is brought to the house of his wife or her family. The $andyan +arriage and Di orce (ct go erns di orce among only those $andyans married under the act. The act recogni!es some differing grounds of di orce for men and women. Di orce may be sought on the following groundsE .. adultery by the wife? 5. adultery by the husband' coupled with incest or gross cruelty? ;. continued and complete desertion for two years? @. inability to li e together' of which actual separation from bed and board for one year is the test? and :. mutual consent. Gnder the act' an application for di orce is made to the district registrar'who may use discretion in granting or refusing to grant the di orce. The +arriage Registration 0rdinance go erns di orce between $andyans who choose to be married under the general law. L)+S G'V.(,I,G M!SLIMS +uslim personal law recogni!es different grounds of di orce for the husband and the wife? spouses do not ha e e&ual rights to di orce. %t also recogni!es grounds for di orce on fault6 and non6fault6based grounds. The rights and duties of the parties are determined according to the sect to which the person belongs. Di orce by the husband is known as talak. This is the >repudiation of the marital tie by the unilateral act of the husband'> by making a pronouncement that the marriage is dissol ed. The husband may pronounce talak without following any prescribed Cudicial procedures. Durthermore' the pronouncement need not be made in the presence of or communicated to the wife. The board of Bua!is and the Supreme 4ourt share the iew that pronouncement of talak need not be communicated to the wife. The +uslim +arriage and Di orce (ct specifies the procedure in the e ent of di orce by the husband. These rules are comparable to the most progressi e legislation on talak in the +uslim world. ( significant feature of the procedure is the duty of the Bua!i' who recei es notice of the intention to pronounce talak' to attempt to reconcile the parties with the assistance of relati es and elders of the community. Di orce by the wife is known as fasah di orce in +uslim law' and although the term is not used in Sri Lanka'the +uslim +arriage and Di orce (ct recogni!es the right of the wife to di orce on the grounds identified with fasah di orce. The a ailability and scope of fasah di orce depends on the sect to which the parties

belong. +aliki law' which applies to the +aliki sect' is the most liberal in this regard. The grounds a ailable to the wife for fasah di orce includeE .. failure or inability of the husband to pro ide support? 5. malicious desertion? ;. cruelty and ill6treatment? @. >continued dissension and &uarrels>? :. husband<s leprosy? A. husband<s insanity? and 9. impotence. Di orce on the ground of ill6treatment includes mental ill6treatment as well as slanderous and false accusations of adultery. 4ourts ha e also noted that in assessing cruelty' factors such as social conditions and actual life circumstances will be considered. The most common grounds upon which fasah di orce is sought are failure to maintain and desertion. %n fasah di orce' the Bua!i must ser e notice of the hearing for di orce on the husband. The wife<s e idence must be corroborated by at least two witnesses'the failure of which may be fatal to the case. Di orce is granted only after the maximum efforts at reconciliation ha e failed. 0ther forms of di orce under +uslim personal law include khula and mubarat. The former is initiated by the wife and generally in ol es a monetary payment by the wife to the husband for her release from the marriage? the return of the woman<s mahr is usually considered sufficient. The mubarat form of di orce is based on mutual consent and does not re&uire such payment to the husband. ( woman who has been falsely accused of adultery by her husband has the right to a form of di orce called lian. =owe er' if at a hearing the husband rescinds his statement' lian is no longer a ailable. L)+S G'V.(,I,G T)MILS The +arriage Registration 0rdinance and the 4i il 2rocedure 4ode apply to Tamils in matters of di orce. 2!DI"I)L S.0)()TI', The 4i il 2rocedure 4ode constitutes the general law on Cudicial separation. The code pro ides that either party may petition for separation >on any ground on which by the law applicable to Sri Lanka such separation may be granted.> Thus' Roman6Dutch law grounds for separation are applicable' the essential feature of which is proof that further cohabitation has become dangerous or intolerable due to unlawful conduct by the defendant.

Laws go erning $andyan Sinhalese The $andyan +arriage and Di orce (ct does not include Cudicial separation as matrimonial remedy. =owe er' $andyan Sinhalese married under the general law may seek Cudicial separation under the 4i il 2rocedure 4ode.Laws go erning +uslims The concept of Cudicial separation does not exist under +uslim law. Laws go erning Tamils The 4i il 2rocedure 4ode applies to Tamils in matters of Cudicial separation. M)I,T.,),". ),D S!00'(T L)+S The .777 +aintenance (ct is the general law on maintenance during marriage. %nstituting proceedings under the act does not preclude a person from also initiating a ci il action for maintenance' in which case common law principles of maintenance would apply. The act re&uires any spouse with sufficient means to maintain the other spouse' if such indi idual is unable to maintain him or herself. The law in place prior to the act imposed a duty of maintenance only on a husband. (n order for maintenance will not be awarded if the applicant spouse is li ing in adultery or both spouses are li ing separately by mutual consent. . This constitutes a departure from the common law' which pro ides that the obligation of support continues during a period of consensual separation. %n cases where a wife is precluded from recei ing an award for maintenance under the +aintenance (ct' she may still bring a ci il action to enforce her husband<s common law obligation of support for her personal necessaries. The +aintenance (ct also imposes a duty on a parent to pro ide for the maintenance of all minor children' needy adult offspring "ages .165:# and disabled offspring. The 4i il 2rocedure 4ode recogni!es the right of either spouse to enforce the other<s obligation of support while an action for di orce is pending. The primary obCecti e of the action is to enable the spouse in need to li e without hardship during the litigation' and proceed with the action. The applicant6spouse need only pro e financial need and the other spouse<s ability to pro ide the re&uired support. 0n the dissolution of marriage' courts ha e broad discretionary powers regarding maintenance awards under the 4i il 2rocedure 4ode. ( court may issue any order it thinks fit with regard to con eyances of property or monetary payments of maintenance for the benefit of either spouse.

Laws go erning $andyan Sinhalese The +aintenance (ct applies to $andyans in matters of maintenance obligations during marriage. The $andyan +arriage and Di orce (ct includes pro isions on maintenance in cases of di orce. The act pro ides that a district registrar' in granting the dissolution of a marriage'may order the husband to pay a certain amount of money or pro ide other support for the maintenance of his wife' children or both. The act does not stipulate what factors the registrar should take into account in making the award' although such factors generally include the husband<s ability to pay'the wife<s needs' the degree of fault attributed to each party'the duration of the marriage' and the couple<s standard of li ing. Laws go erning +uslims The +uslim +arriage and Di orce (ct pro ides that any claim for maintenance by or on behalf of a wife' legitimate child or illegitimate child "where both parents are +uslims# falls within the exclusi e Curisdiction of the Bua!i. The act does not specify the principles pertaining to maintenance? instead' it pro ides that the law of the sect to which the parties belong should apply. ( +uslim woman<s right to maintenance during marriage is deri ed from the concept of nafa&a'which encompasses the pro ision of basic needs such as food' clothing and accommodation to the wife. %n contrast to the +aintenance (ct' the husband has the primary obligation of pro iding support and a wife<s own financial means are irrele ant in determining her claim for maintenance. +aintenance after di orce is not recogni!ed under +uslim personal law. =owe er' the +uslim +arriage and Di orce (ct pro ides three situations in which a di orced wife may claim maintenanceE .. until registration of the di orce? 5. during iddat "the period of time that a di orced wife must remain unmarried#? and ;. if such woman is pregnant at the time of registration of the di orce' until she deli ers the child.:@8 Laws go erning Tamils 3o data is a ailable on maintenance and support laws go erning Tamils. "!ST'D* ),D )D'0TI', L)+S The general law regarding custody in Sri Lanka has recei ed little legislati e attention. Those laws that do exist do not address the substanti e rights of parents and deal primarily with the procedural aspects of custody cases. The principles of custody are thus go erned by the residuary Roman6Dutch law. The predominant feature of the common law is the preferential custodial right gi en to the father'which may be denied only in instances of danger to the >life' health and morals> of the children. ( mother who seeks custody therefore has the onus of displacing the father<s right. %t should be noted that the general law principles of fault6based di orce ha e carried o er into the area of custody' tipping the scale in fa or of the innocent spouse. =owe er' case law has reiterated that the paramount concern in determining custody is the child<s welfare. There is lack of guidance' statutory or otherwise' with regard to what criteria should be considered in determining the best interests of the child. 4ourts ha e in the past emphasi!ed the >(siatic> alue system' gi ing primacy to maintaining family links o er enhancing the mental health of the child. Recently' howe er' courts ha e also considered the child<s sense of security as a factor.

.8

4hildren 0rdinance' which pro ides that adoption will only be permitted for the >welfare of the child.> The ordinance also takes into consideration the adoptee<s wishes according to the child<s age and le el of understanding. The ordinance was amended in .775 to put an end to the commerciali!ation of adoption by intermediaries who facilitate the adoption of young Sri Lankan children by foreign parents from highincome countries. The amendments prohibit gi ing or recei ing payments as consideration for an adoption'and pro ide that a child may be considered for adoption by a foreign family only if no local family is a ailable to adopt the child. Laws governing Musli#s Gnder +uslim personal law' the mother has preferential custodial rights to minor children. The duration of this right differs among sects and is also affected by the gender and age of the child in &uestion. Gnder Shafi law' a female child remains with the mother until she marries' whereas under =anafi law' custody is with the mother only until the girl reaches puberty. 4ustody of male children in both Shafi and =anafi sects is with the mother until the child reaches age se en. Gnder Shafi law' the boy may choose which parent to li e with after age se en until puberty. Gnder =anafi law' custody automatically passes to the father after the age of se en. Gpon the mother<s death or a determination of her unsuitability' custody de ol es to the maternal relati es. Despite a mother<s preferential custodial rights' a father<s guardianship rights include the rights to isit the child'super ise upbringing' act as a marriage guardian' and control and manage the child<s property. ( mother may lose her preferential rights in special circumstances' which include the following e entsE .. her marriage to a complete stranger to her child' unless the man she marries is related to the child within certain close degrees of kinship? 5. her misconduct' cruelty toward the child or both' which ha e been interpreted to include physical and moral harm? ;. her apostasy or con ersion of faith? or @. her change of residence' which pre ents the father from super ising the children. Despite the Curisdiction of Bua!i courts in the +uslim legal system' ordinary courts ha e exercised Curisdiction in custody matters. %n this way' they ha e modified some principles of +uslim law on the basis of the >welfare of the child> standard deri ed from the general law. The Supreme 4ourt has held that although it would consider preferential rights in customary laws' such rights are not conclusi e in custody determinations. %n departing from +uslim law'courts ha e recogni!ed exceptions' based on the welfare of the child' to the principle that the mother loses custody upon remarriage to a nonrelati e of the child. These exceptions areE .. where it is in the interests of the child that he or she remain with the mother? 5. where remarriage was moti ated by the security and comfort of the minor? and ;. where the father does not claim the child after the woman<s second marriage. (.L.V),T L)+S ),D 0'LI"I.S .. +arried *omen<s 2roperty 'rdinance, 3456

..

5. ;. @. :. A.

+atrimonial Rights and %nheritance 'rdinance, 3789 $andyan Law Declaration and (mendment 'rdinance, 3467 +uslim %ntestate Succession 'rdinance, 3463 +atrimonial Rights and %nheritance :2affna; 'rdinance, 3433 Land De elopment 'rdinance, 346<

0 erall are women' mostly in semiskilled and unskilled positions? moreo er' some 78H of garment factory workers are women. +ore than a &uarter of female workers are employed in the informal sector as casual laborers'agricultural workers and workers in home6based industries. *omen also constitute A8H of Sri Lankans who obtain employment abroad' where the demand for Sri Lankan labor is largely for unskilled workers' particularly domestic workers. The constitution guarantees the right of e ery citi!en to engage indi idually or in association in >any lawful occupation' profession' trade'business or enterprise.> 0ther related constitutionally protected rights include those to freedom of association and freedom to form and Coin a trade union. There are arious laws that pro ide for paid maternity lea e and other maternity benefits to female employees. The Establishments 4ode stipulates conditions of maternity lea e for employees in the public sector. 2ursuant to go ernment regulations passed in .775 and amended in .779' publicsector female employees are entitled to a .56week maternity lea e irrespecti e of marital status' cause of pregnancy or duration of employment. +aternity benefits include two daily half6hour nursing breaks for a six6month period.+aternity lea e is a ailable for permanent' seasonal and part6time female workers in the public sector. Two separate laws go ern maternity benefits for female workers in the pri ate sector. The .7:9 Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct applies to workers in shops and offices and permits a .56week maternity lea e for the first two pregnancies and a six6week lea e for subse&uent pregnancies. The .7;7 +aternity ,enefits 0rdinance pro ides for similar lea e' but applies to female workers in any >trade'>excluding employees co ered under the Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct and >those whose employment is of a casual nature.> The ordinance also pro ides for nursing breaks and the establishment of crIches for female workers with children under age fi e.A8@ ,oth laws prohibit employers from terminating their female employees on the basis of pregnancy' confinement or any related illness. Employers may also not gi e notice of termination to a woman while she is on maternity lea e. The +aternity ,enefits 0rdinance allows for employers in the estate sector to arrange for the pro ision of >alternati e maternity benefits> to their female workers. *omen who refuse to accept the alternati e benefits are not entitled to recei e the standard benefits pro ided under the ordinance. Studies ha e re ealed arying degrees of compliance with pro isions on maternity benefits' with some showing signifi6cant noncompliance. =owe er'the go ernment maintains that labor inspections ha e failed to re eal noncompliance and that it has not recei ed complaints from any person. 4ertain labor legislation excludes or restricts women from some types of employment. Gnder the .7;9 +ines "2rohibition of Demale Labour Gnderground# 0rdinance'women are excluded from working in underground mines' with some exceptions.

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The .7@5 Dactories 0rdinance was recently amended to increase the number of o ertime hours women and young persons may work? howe er' such employment may be prohibited or restricted >if it appears that such o ertime employment will preCudicially affect the health of such women or young person.> Gntil amendments were made in .71@ to the .7:A Employment of *omen'-oung 2ersons and 4hildren (ct and the Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct' women were prohibited from working at night' subCect to certain exceptions. Gnder the amended acts' the prohibition was lifted. The *omen<s 4harter calls for women<s e&uality in employmentrelated matters' both in the formal and informal sectors. The charter enCoins the state to take >appropriate measures> to ensure women<s e&ual rights toE .. economic acti ities for financial benefits? 5. opportunities in employment in the public' pri ate and informal sectors at all le els of employment without gender6based discrimination in recruitment' placement' promotions' conditions of ser ice' and Cob security? ;. remuneration' including benefits? @. treatment with respect to the alue of their work and in e aluating the &uality of their work? :. social security' particularly in cases of retirement' (.L.V),T L)+S ),D 0'LI"I.S .. Establishments 4ode 5. Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct' .7:9 ;. +aternity ,enefits 0rdinance'.7;7 @. +ines "2rohibition of Demale :. Labour Gnderground# 0rdinance'.7;9 A. Dactories 0rdinance' .7@5? and actories :)#end#ent; )ct, 5==5 .. J Employment of *omen'-oung 2ersons and 4hildren (ct' .7:A? and Employment of *omen'-oung 2ersons and 4hildren' the Dactories and the Shop and 0ffice Employees "Regulation of Employment and Remuneration# "(mendment# (ct' .71@ 5. J *omen<s 4harter' .77;

f *ou +ant to Get Married in )fghanistan % % %

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Gnder (fghan law' ci il and religious marriage ceremonies may be performed for some foreigners. (fghans who are dual nationals are treated solely as (fghan under the law. %t is not possible for a non6+uslim man to marry a +uslim woman in (fghanistan' but it is possible for a +uslim man to marry a non6+uslim' foreign' woman. (dditionally' the court will not register marriages in ol ing (fghans who claim not to be +uslim' unless the couple consents to a +uslim religious ceremony. (fghan law considers all (fghans +uslim by default. Marriage (egistration Doreigners who want to marry in $abul must first register the marriage at the Damily 4ourt' located in the $abul Go ernorKs =ouse 4ompound. %n the pro inces' outside of $abul' marriages can be registered at the ci il courts. The couple must appear at the Damily 4ourt in $abul with two witnesses and photo identification "preferably their passports#. *itnesses should also ha e photo identification. %f one of the indi iduals who wish to marry is +uslim' a religious +uslim ceremony will be performed at the time of registration. %f both indi iduals are foreigners and non6+uslim' a ci il ceremony may be performed. (fter the court ceremony' the couple is considered married under (fghan law? they may then conduct the family or religious ceremonyLcelebration of their choice. (fter the marriage is registered' the court will issue a marriage certificate upon re&uest. %n $abul' court officials say' it will take about a week to recei e the certificate. (eligious Marriages %f both or one of the parties are +uslim' the Damily 4ourt will register the marriage and perform the +uslim nekah ceremony. The nekah is comprised of the igaba wa &abul "acceptance agreement# and the khotba. *hen a +uslim man wants to marry a foreign woman who is non6+uslim and the woman is not kitabi "of the book' i.e. 4hristian or Mewish#' she must first con ert to %slam. %n either case' the court will only register the marriage religiously' with the nekah ceremony. "ivil Marriages %f both parties are non6+uslim foreigners' the court will register the marriage by performing solely the igaba wa &abul or acceptance agreement without the other half of the typical +uslim religious ceremony. The court will also seek to apply the regulations go erning marriage in the couplesK home country. Dor example' although (fghan law permits polygamy' (merican men will not be allowed to marry multiple women. Legal "oncerns

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The (fghan marriage certificate is a legal document in (fghanistan. %f the couple needs to use it outside (fghanistan' it should be notari!ed at the Embassy or 4onsulate of the foreign country where the marriage certificate will be used. 2lease read the information a ailable on this website concerning notarial ser ices at the G.S. Embassy in $abul. (ll marriages' ci il or religious' performed outside of (fghanistan are considered alid under (fghan law. ( legally issued marriage certificate is re&uired as proof. Dual nationals may need to ha e their marriage certificates authenticated at the (fghan Embassy in the country they were married.

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