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The Sri Lankan General Law of Marriage

The Sri Lankan General Law of Marriage

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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


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. 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.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)) 5 . 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. 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.#F 2000) (oonese)ere The Le-al Status of the Female in the Sri Lan)a law of Family relations (Colombo & '0) *S . '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. %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. %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. (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 (*+.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. 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. Suspension of the marriage is a recogni!ed form of relief and the iability of the marriage is not a consideration.

1 for both men and women. %f a parent unreasonably withholds consent' a .Tambiah93+ The Laws and Customs of the Tamils of .M. M)((I)G. The ordinance does not go ern marriages contracted between +uslims.. )G.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.-) The .arriage -egistrars ffice within your area of residence or the . 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. 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. M)((I)G.TS 2ursuant to a . $andyan Sinhalese may choose to be go erned by the general law or $andyan law.789 +arriage Registration 0rdinance constitutes the general law on marriage in Sri Lanka. They may apply for the same day marriage registration at the marriage registrar+s office. The local marriage registrar may grant special permission for same day marriages in some circumstances. )MIL* L)+S S(I L).-) The body of law relating to marriage consists of the general law' customary law and personal law. 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. (./!I(. +uslims are go erned by +uslim personal law. L)+ S(I L). The ordinance applies to marriage between Tamils and between indi iduals of differing ethic and religious communities. To be legally recogni*ed under Sri Lankan law& marriages must be registered with a . ( subse&uent pro ision' howe er' authori!es parents to consent to a marriage in ol ing a minor.ivisional Secretariat of your area. 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. .77: amendment to the ordinance' the minimum age of marriage was raised to .

+arriage or cohabitation between such parties is punishable with imprisonment.. ( marriage is presumed to be diga if there is no e idence as to its character.D M)((I)G. 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. @. M)((I)G.7:5? and $andyan +arriage and Di orce "(mendment# (ct' . 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. 4hildren so legitimi!ed are entitled to the same rights as those born subse&uent to a marriage. (doption of 4hildren 0rdinance' . =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. $andyan +arriage and Di orce (ct' .T L)+S ). +aintenance (ct' .7@. This means that any premarital offspring are automatically legitimi!ed if the parents subse&uently enter into a alid $andyan marriage. DIG) M)((I)G.S . The act specifies that a alid $andyan marriage renders legitimate any children born to the parties prior to such a marriage. This exception does not apply to customary marriages because such marriages would not ha e satisfied the registration re&uirement. &I.court may authori!e the marriage. (..S The ordinance renders marriage between two indi iduals within prohibited degrees of kinship oid.D 0'LI"I. 2ro isions in the penal code regarding incest further enhance the penalty for such marriages. +uslim +arriage and Di orce (ct' . +arriage Registration 0rdinance' . (n entry made in the marriage register is simply the >best e idence> of the marriage.V).S *hether the marriage is binna or diga depends on the intention of the parties.117 :.77: .? amended in .789? and +arriage Registration "(mendment# (ct' .. Thus' customary marriages' including those solemni!ed according to =indu' . Registration of marriages is not mandatory under the ordinance.).77: 5. The ordinance prohibits polygamy.GIST()TI'. 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.uddhist and 4hristian rites and rituals' ha e been accepted as alid despite the fact that they are unregistered. 4i il 2rocedure 4ode' .L. (. 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. 0('1I&IT. The law recogni!es a rebuttable presumption of marriage by habit and repute.775 @ .7:.777 A.

(lso'under %slamic law'a minor girl has the right to repudiate the marriage upon attaining puberty. =owe er' where a marriage in ol es a girl below age . )"T The +uslim +arriage and Di orce (ct go erns marriage between +uslim parties. ( 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.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. The act does not specify a minimum age for alid marriage.'if a woman has suckled another<s child' that child cannot contract a marriage with the woman or her natural children#. 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. Durthermore' under the penal code' sexual intercourse with one<s wife who is under age .M!SLIM M)((I)G.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.e. 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. %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 . (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. 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. %n +uslim law'prohibited relationships in marriage include affinity'consanguinity and fosterage "i.D DIV'(".5 constitutes rape' though this pro ision has not been consistently applied by the courts.@1@ : . 3on6registration of a marriage does not affect alidity 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. 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. ). =owe er' the act does impose a duty to register a marriage on specified persons' the failure of which constitutes an offense.

G -).(. 2hysical illtreatment per se is also not a ground for di orce under the general law' but it is a cause for legal separation. The act prohibits marriage between certain closely related indi iduals.@7. 2ersons subCect to $andyan law may be married under the +arriage Registration 0rdinance or the . +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.@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. %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. adultery? 5. SI. 2ursuant to a . Grounds for di orce under the ordinance are the followingE . L)+S The +arriage Registration 0rdinance and the 4i il 2rocedure 4ode constitute the general law on di orce.G T)MILS The +arriage Registration 0rdinance go erns marriage among Tamils. %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. (s opposed to the general law<s lack of a registration re&uirement' registration is a crucial A .7:5 $andyan +arriage and Di orce (ct. The general law on di orce as it stands is thus firmly fault based. 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.(.> The intent to terminate the marital relationship and the actual termination of cohabitation are both necessary elements.S.I. +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. incurable impotence at the time of marriage. %t renders a second marriage in alid if the first is not legally dissol ed.I. (n aggrie ed spouse may reco er damages from the person with whom adultery is committed.. L)+S G'V.77: amendment to the $andyan +arriage and Di orce (ct' the minimum age of marriage was raised to .L)+S G'V. 4ruelty is not a ground for di orce' although it may be a factor in determining malicious desertion. malicious desertion? and ..@1: The pro isions of the ordinance firmly establish di orce as faultbased and case law has reaffirmed this concept.1 for both sexes. DIV'(".D*). =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.1)L.

%t also recogni!es grounds for di orce on fault6 and non6fault6based grounds.I. %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. The +uslim +arriage and Di orce (ct specifies the procedure in the e ent of di orce by the husband. continued and complete desertion for two years? @. mutual consent.aspect of the act. inability to li e together' of which actual separation from bed and board for one year is the test? and :.(. 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.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. The a ailability and scope of fasah di orce depends on the sect to which the parties 9 . The +arriage Registration 0rdinance go erns di orce between $andyans who choose to be married under the general law. Di orce may be sought on the following groundsE . 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. ( 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... The board of Bua!is and the Supreme 4ourt share the iew that pronouncement of talak need not be communicated to the wife. adultery by the wife? 5. The $andyan +arriage and Di orce (ct go erns di orce among only those $andyans married under the act. These rules are comparable to the most progressi e legislation on talak in the +uslim world. The act recogni!es some differing grounds of di orce for men and women.@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. 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. adultery by the husband' coupled with incest or gross cruelty? . The rights and duties of the parties are determined according to the sect to which the person belongs. Durthermore' the pronouncement need not be made in the presence of or communicated to the wife. The husband may pronounce talak without following any prescribed Cudicial procedures. The conse&uences flowing from a $andyan marriage depend on whether the marriage is contracted in diga or binna. L)+S G'V. Di orce by the husband is known as talak.

+aliki law' which applies to the +aliki sect' is the most liberal in this regard. Di orce is granted only after the maximum efforts at reconciliation ha e failed.(. =owe er' if at a hearing the husband rescinds his statement' lian is no longer a ailable. 4ourts ha e also noted that in assessing cruelty' factors such as social conditions and actual life circumstances will be considered. The wife<s e idence must be corroborated by at least two witnesses'the failure of which may be fatal to the case. ( woman who has been falsely accused of adultery by her husband has the right to a form of di orce called lian.. failure or inability of the husband to pro ide support? 5. impotence.G T)MILS The +arriage Registration 0rdinance and the 4i il 2rocedure 4ode apply to Tamils in matters of di orce. 1 . 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. The grounds a ailable to the wife for fasah di orce includeE .belong. The most common grounds upon which fasah di orce is sought are failure to maintain and desertion. The 4i il 2rocedure 4ode constitutes the general law on Cudicial separation.I. Di orce on the ground of ill6treatment includes mental ill6treatment as well as slanderous and false accusations of adultery.0)()TI'. The mubarat form of di orce is based on mutual consent and does not re&uire such payment to the husband. husband<s insanity? and 9. 2!DI"I)L S. 0ther forms of di orce under +uslim personal law include khula and mubarat. cruelty and ill6treatment? @..> 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. malicious desertion? . >continued dissension and &uarrels>? :. %n fasah di orce' the Bua!i must ser e notice of the hearing for di orce on the husband. L)+S G'V. husband<s leprosy? A. 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.

D S!00'(T L)+S The .. %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 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.777 +aintenance (ct is the general law on maintenance during marriage.165:# and disabled offspring. 7 . M)I. ( 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. 0n the dissolution of marriage' courts ha e broad discretionary powers regarding maintenance awards under the 4i il 2rocedure 4ode. This constitutes a departure from the common law' which pro ides that the obligation of support continues during a period of consensual separation. .).".Laws go erning +uslims The concept of Cudicial separation does not exist under +uslim law. 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. =owe er' $andyan Sinhalese married under the general law may seek Cudicial separation under the 4i il 2rocedure 4ode. Laws go erning Tamils The 4i il 2rocedure 4ode applies to Tamils in matters of Cudicial separation. 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. ).Laws go erning $andyan Sinhalese The $andyan +arriage and Di orce (ct does not include Cudicial separation as matrimonial remedy. %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 . The applicant6spouse need only pro e financial need and the other spouse<s ability to pro ide the re&uired support. 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.T.

8 . Recently' howe er' courts ha e also considered the child<s sense of security as a factor. 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. until registration of the di orce? 5. =owe er' case law has reiterated that the paramount concern in determining custody is the child<s welfare. "!ST'D* ). L)+S The general law regarding custody in Sri Lanka has recei ed little legislati e attention.:@8 Laws go erning Tamils 3o data is a ailable on maintenance and support laws go erning Tamils. 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. 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. ( +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. if such woman is pregnant at the time of registration of the di orce' until she deli ers the child. %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.. The principles of custody are thus go erned by the residuary Roman6Dutch law.. =owe er' the +uslim +arriage and Di orce (ct pro ides three situations in which a di orced wife may claim maintenanceE . 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 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. ( mother who seeks custody therefore has the onus of displacing the father<s right. The $andyan +arriage and Di orce (ct includes pro isions on maintenance in cases of di orce. +aintenance after di orce is not recogni!ed under +uslim personal law. 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. There is lack of guidance' statutory or otherwise' with regard to what criteria should be considered in determining the best interests of the child. during iddat "the period of time that a di orced wife must remain unmarried#? and .D )D'0TI'. . 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. %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.Laws go erning $andyan Sinhalese The +aintenance (ct applies to $andyans in matters of maintenance obligations during marriage.

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. where it is in the interests of the child that he or she remain with the mother? 5. %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.V). her change of residence' which pre ents the father from super ising the children.. The ordinance was amended in . Gnder =anafi law' custody automatically passes to the father after the age of se en. The duration of this right differs among sects and is also affected by the gender and age of the child in &uestion. These exceptions areE . 3456 . . 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. 4ustody of male children in both Shafi and =anafi sects is with the mother until the child reaches age se en.D 0'LI"I. where the father does not claim the child after the woman<s second marriage. ( mother may lose her preferential rights in special circumstances' which include the following e entsE . +arried *omen<s 2roperty 'rdinance.S . Gpon the mother<s death or a determination of her unsuitability' custody de ol es to the maternal relati es. Laws governing Musli#s Gnder +uslim personal law' the mother has preferential custodial rights to minor children. (. The Supreme 4ourt has held that although it would consider preferential rights in customary laws' such rights are not conclusi e in custody determinations.. Despite the Curisdiction of Bua!i courts in the +uslim legal system' ordinary courts ha e exercised Curisdiction in custody matters.. her apostasy or con ersion of faith? or @.4hildren 0rdinance' which pro ides that adoption will only be permitted for the >welfare of the child. where remarriage was moti ated by the security and comfort of the minor? and .L. her misconduct' cruelty toward the child or both' which ha e been interpreted to include physical and moral harm? ..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.T L)+S ). Gnder Shafi law' the boy may choose which parent to li e with after age se en until puberty.. 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. %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. 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..> The ordinance also takes into consideration the adoptee<s wishes according to the child<s age and le el of understanding.

The Establishments 4ode stipulates conditions of maternity lea e for employees in the public sector. @. *omen who refuse to accept the alternati e benefits are not entitled to recei e the standard benefits pro ided under the ordinance. 2ursuant to go ernment regulations passed in . +aternity benefits include two daily half6hour nursing breaks for a six6month period. 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. 3789 $andyan Law Declaration and (mendment 'rdinance.5. +ore than a &uarter of female workers are employed in the informal sector as casual laborers'agricultural workers and workers in home6based industries.7 +aternity . The +aternity . 3463 +atrimonial Rights and %nheritance :2affna. 'rdinance.oth laws prohibit employers from terminating their female employees on the basis of pregnancy' confinement or any related illness. .779' publicsector female employees are entitled to a .> 0ther related constitutionally protected rights include those to freedom of association and freedom to form and Coin a trade union. 4ertain labor legislation excludes or restricts women from some types of employment.. Employers may also not gi e notice of termination to a woman while she is on maternity lea e.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. =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. There are arious laws that pro ide for paid maternity lea e and other maternity benefits to female employees.7.> The ordinance also pro ides for nursing breaks and the establishment of crIches for female workers with children under age fi e. +atrimonial Rights and %nheritance 'rdinance. Gnder the .9 +ines "2rohibition of Demale Labour Gnderground# 0rdinance'women are excluded from working in underground mines' with some exceptions. 3433 Land De elopment 'rdinance.56week maternity lea e for the first two pregnancies and a six6week lea e for subse&uent pregnancies. The . . A.7:9 Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct applies to workers in shops and offices and permits a .+aternity lea e is a ailable for permanent' seasonal and part6time female workers in the public sector.7. :. Two separate laws go ern maternity benefits for female workers in the pri ate sector.56week maternity lea e irrespecti e of marital status' cause of pregnancy or duration of employment.5 .A8@ . The . *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.775 and amended in .enefits 0rdinance allows for employers in the estate sector to arrange for the pro ision of >alternati e maternity benefits> to their female workers. 346< 0 erall are women' mostly in semiskilled and unskilled positions? moreo er' some 78H of garment factory workers are women. Studies ha e re ealed arying degrees of compliance with pro isions on maternity benefits' with some showing signifi6cant noncompliance. 3467 +uslim %ntestate Succession 'rdinance.

Shop and 0ffice Employees "Regulation of Employment and Remuneration# (ct' . Gnder the amended acts' the prohibition was lifted.9 A..> Gntil amendments were made in .V).71@ 5. J Employment of *omen'-oung 2ersons and 4hildren (ct' .7.71@ to the . )ct.7:9 . The charter enCoins the state to take >appropriate measures> to ensure women<s e&ual rights toE . Dactories 0rdinance' . Establishments 4ode 5.7:A? and Employment of *omen'-oung 2ersons and 4hildren' the Dactories and the Shop and 0ffice Employees "Regulation of Employment and Remuneration# "(mendment# (ct' .7@5? and actories :)#end#ent.T L)+S ).D 0'LI"I.7 @. economic acti ities for financial benefits? 5..enefits 0rdinance'.. 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' (.The . The *omen<s 4harter calls for women<s e&uality in employmentrelated matters' both in the formal and informal sectors. 5==5 . J *omen<s 4harter' .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. +aternity . f *ou +ant to Get Married in )fghanistan % % % . .. +ines "2rohibition of Demale :. 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? @.77.S . Labour Gnderground# 0rdinance'.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...7.L.

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 either case' the court will only register the marriage religiously' with the nekah ceremony.e.Gnder (fghan law' ci il and religious marriage ceremonies may be performed for some foreigners. The court will also seek to apply the regulations go erning marriage in the couplesK home country. 4hristian or Mewish#' she must first con ert to %slam. The couple must appear at the Damily 4ourt in $abul with two witnesses and photo identification "preferably their passports#. (fter the court ceremony' the couple is considered married under (fghan law? they may then conduct the family or religious ceremonyLcelebration of their choice. (fghan law considers all (fghans +uslim by default. (eligious Marriages %f both or one of the parties are +uslim' the Damily 4ourt will register the marriage and perform the +uslim nekah ceremony. %n the pro inces' outside of $abul' marriages can be registered at the ci il courts. *hen a +uslim man wants to marry a foreign woman who is non6+uslim and the woman is not kitabi "of the book' i. (fter the marriage is registered' the court will issue a marriage certificate upon re&uest.@ . (fghans who are dual nationals are treated solely as (fghan under the law. Legal "oncerns . (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. %f both indi iduals are foreigners and non6+uslim' a ci il ceremony may be performed. %n $abul' court officials say' it will take about a week to recei e the certificate. The nekah is comprised of the igaba wa &abul "acceptance agreement# and the khotba. "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. %f one of the indi iduals who wish to marry is +uslim' a religious +uslim ceremony will be performed at the time of registration. Dor example' although (fghan law permits polygamy' (merican men will not be allowed to marry multiple women. *itnesses should also ha e photo identification. %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.

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

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