Legal Coverage On Property

Rights Of Spouses
 Position Of Roman Dutch Law
• It should be noted that the concept of community of property in Roman Dutch Law
was applicable to Sri Lanka as a result of it being a part of Roman Dutch Law.
• Simply put, “Being married in community of property basically means that all the
assets and debts from before the marriage are shared in a joint estate between both
spouses. Any assets, debts and liabilities acquired by either spouse after their
marriage will then also added to this joint estate.”
• The concept further provides rights over property to a spouse who has not
contributed to accumulate assets during the marriage.
• Do you think this has improved the position of women within the marriage institution
in terms of property? No, the reason is, marital power was concentrated on the
husband. (E.G.- Wife’s inability to alienate property without the consent of the
husband.)
 Application Of The Concept Of Community Of
Property Today
Matrimonial Rights And Inheritance Ordinance 1876
Section 7
There shall be no community of goods between husband and wife,
married after the proclamation of this ordinance, as a consequence of
marriage, either in respect of movable or immovable property.
However; section 11 (when husband’s consent may be dispensed
with.) required consent of the husband at an instance where the wife
needs to alienate property.
 Section 8 - Immovable Property Of The Wife.
The proclamation of this ordinance, may be entitled at the time of her marriage,
or may become entitled during her marriage, shall, subject and without prejudice
to the trusts of any will or settlement affecting the same, belong to the woman
for her separate estate, and shall not be liable for the debts or engagements of
her husband, unless incurred for or in respect of the cultivation, upkeep, repairs,
management, or improvement of such property, or for or in regard to any
charges, rates, or taxes imposed by law in respect thereof, and her receipts alone
or the receipts of her duly authorized agent shall be a good discharge for the
rents, issues, and profits arising from or in respect of such property. Such woman
shall, subject and without prejudice to any such trusts as aforesaid, have as full
power of disposing of and dealing with such property, by any lawful act inter
vivos (between living people.) with the written consent of her husband, but not
otherwise, or by last will without such consent, as if she were unmarried.
 Section 17 -
All Other Movable Property Of The Wife To Vest
In The Husband.

All movable property to which any woman, married after the

proclamation of this ordinance, shall be entitled at the time of her
marriage or may become entitled during her marriage, shall,
subject and without prejudice to any settlement affecting the
same, and except so far as is by this ordinance otherwise provided,
vest absolutely in her husband.
 Extra Insights - Section 18 Wife With Separate
Property Liable For The Maintenance Of Her
Children.
• A married woman having separate property adequate for the purpose
shall be subject to all such liability for the maintenance of her children as
a widow is now by law subject to for the maintenance of her children :
• Provided that nothing in this ordinance shall relieve her husband from any
liability at present imposed upon him by law to maintain her children.
Married Woman’s Property Ordinance No. 18 Of
1923; How It Changes The Right Of Wives To
Alienate Property Without The Consent Of The
Husbands
 Extra Knowledge – Feme Sole
“Feme sole, in Anglo-American common law, a woman in the unmarried state
or in the legally established equivalent of that state. The concept derived from
feudal Norman custom and was prevalent through periods when marriage
abridged women’s rights. Feme sole (Norman French meaning “single
woman”) referred to a woman who had never been married or who was
divorced or widowed or to a woman whose legal subordination to her husband
had been invalidated by a trust, a prenuptial agreement, or a judicial decision.
In some instances by custom a woman could execute contracts independent of
her husband as a feme sole trader, but generally legal action was required to
establish a married woman’s legal separateness from her husband. ”
More
Emphasis On
Property
Related Rights
Of A Married
Woman
 Dowry
• Not an important part in Roman Dutch Law
Case laws and some principles on the use of dowry in Sri Lanka in light of
property rights of spouses.
• Karunanayake V. Karunanayake (1937) 39 N.L.R. 275
At the point of dissolution of marriage, a wife is unable to recover movable
property which were given to her husband by her parents as it is considered
as an absolute property of the husband.
• Somawathie v. Simon perera (1984) 1 S.L.R. 78
The court was of the view that under Roman Dutch Law a wife has the right to
sue for the restitution of dowry property after a divorce but it will be not
allowed in an instance where the wife has committed matrimonial
misconduct.
 Samarasinghe V. Samarasinghe(1989)2 S.L.R. 180
• Divorce - forfeiture of benefits - who can
claim it and when - civil procedure code,
s.615(1)
• The words "upon pronouncing a decree
of divorce or separation" in the new
section 615(1) of the civil procedure code
imply that issues relating to forfeiture of
benefits by the guilty spouse could be
raised in an action for divorce or
separation.
• As forfeiture (the loss or giving up of
something as a penalty for wrongdoing.)
Of benefits can be ordered only against a
guilty spouse on proof of matrimonial
fault in this particular case as the
defendant wife had not counterclaimed
for a divorce or separation, it is not open
to her to raise such issues.
Separate Property of Spouses will not be affected by this
precedent or legal principles.
 New Words You Might Have Been Exposed To
• “Hypothecation - hypothecation occurs when an asset is pledged (a thing that
is given as security for the fulfilment of a contract or the payment of a debt and
is liable to forfeiture in the event of failure.) as collateral to secure a loan,
without giving up title, possession or ownership rights, such as income
generated by the asset. However, the lender can seize the asset if the terms of
the agreement are not met.
• Surety bond - a surety bond is defined as a contract among at least three
parties: the obligee: the party who is the recipient of an obligation. The
principal: the primary party who will perform the contractual obligation.
The surety: who assures the obligee that the principal can perform the task.
• Annuity - a fixed sum of money paid to someone each year, typically for the
rest of their life.”
 Support Obligations In Light Of Personal Laws
• Kandyan Law
Kandyan law is influenced by more liberal views with regard to marriage
related rights and liabilities, on women, as Kandyan law does not expressly
recognize husband’s marital power.
Bandaranayake v. Bandaranayake (1922)24 N.L.R. 245
“Where a Kandyan Sinhalese woman marries a low-country Sinhalese, her
matrimonial rights are governed by the Kandyan law and not by ordinance no.
15 of 1876. A Kandyan Sinhalese is not a person of a different race or
nationality from a low-country Sinhalese. ”
• Even in a mixed marriage, the woman is entitled to be governed by
her own law. Children will be governed by the legal system that
governs their father.
• As you are already aware, Kandyan marriages can be divided mainly
into two categories, diga and binna.
• The husband’s position in a binna marriage is much inferior to that of
a diga marriage.
• In Kandyan law, there are certain types of property that should be
considered including acquired property and paraveni property/
ancestral property, where rights relating to such property types will
differ depending on the circumstances (including type of marriage).
• Mampitiya v. Wegodapola (1922) 24 N.L.R. 129
The court in this case held that even though the daughter has entered into a
diga marriage, since she has not left the ancestral home she also develops
inheritance rights over the paraveni property. The case of Seneviratne V.
Halangama was also supportive to the said precedent.
However, the legal position over property rights of a diga married daughter has
later changed through the conclusion of the Kandyan Law Ordinance.
• Not being able to develop inheritance rights subsequently to a diga marriage
was not strictly enforced by the courts at certain instances whereas in certain
cases the court accepted the said view strictly. Following cases can be
regarded as examples for such footing.
• Rana v. Kiribindu (1978) 78 N.L.R. 73
The question that arose in this case was whether the plaintiff who was a person
subject to the Kandyan law was entitled to succeed to the inheritance of her
father inasmuch as she had married in “ diga there was a finding of fact that the
plaintiff although married in “ diga ” did not shift her residence from the “
mulgedera”. The defendant was the elder brother of the plaintiff and the
plaintiff’s position was that though she was married in “ diga ” she had remained
in the “ mulgedera ” to look after three minor children of the defendant whose
wife had died shortly before the plaintiff’s marriage. The plaintiff’s husband also
died before her father. The provisions of Kandyan law declaration, and
amendment ordinance (cap. 59) were applicable. Here, the possibility of
acquiring rights over parveni property was expressed.
• Jayasingha v. Kiribindu (1997) 2 S.L.R. 1
“Remaining in or returning to the mulgedera does not
necessarily result in a retention or re-acquisition of
rights. If a diga married woman is remarried in binna
or re-admitted into her father’s family by a binna
settlement clearly showing that a binna connection
was intended, she regains the rights of a binna
married daughter to inherit her intestate father’s
properties.”
Your Task

Considering A daughter married through a binna

marriage, what do you think about her rights relating
to the dowry property?
• Tesawalamai Law
When it comes to property related rights of spouses, Jaffna Matrimonial Rights
And Inheritance Ordinance is of utmost importance specifically with regard to
persons whose matrimonial rights are governed by Tesawalamai law.
Types of Property as Per Tesawalamai Code;
• Chidenam – Known as the Dowry property which is considered as a Wife’s
separate property.
• Mudusam – Regarded as the inherited property of the man in a marriage
which is considered as the man’s separate property.
• Thedia thettam – Regarded as joint property of the spouses that are acquired
during the marriage.
 A Brief Reference to Matrimonial Rights And Inheritance (Jaffna) No 1
of 1911
Application of the Act
Section 3(1) -
(1) Whenever a woman to whom the Tesawalamai applies marries a
man to whom the Tesawalamai does not apply, she shall not during
the subsistence of the marriage be subject to the Tesawalamai.
(2) Whenever a woman to whom the Tesawalamai does not apply
marries a man to whom the Tesawalamai does apply, she shall during
the subsistence of the marriage be subject to the Tesawalamai.
How Independent is a Woman in a Marriage Under
Tesawalamai Law According to JMRIO?
An extracted part from section 6 JMRIO
“Such woman shall, subject and without
prejudice to any such trusts as aforesaid, have
as full power of disposing of and dealing with
such property by any lawful act inter vivos Deeply inspired by Roman Dutch Law;
(between living people.) without the consent With regard to movable property the
of the husband in case of movables, or with
his written consent in the case of woman has the full ability to use it in
immovables, but not otherwise, or by last will anyway as she wishes to do so subject to
without consent, as if she were unmarried.” certain conditions;
However, with regard to immovable
property such flexibility can not be seen.
What if the Husband can not provide consent?
Section 8 deals with the “Power to District Court to supply consent in certain cases.”
Case Law Examples For Judicial Recognition Of A
Woman’s Disability With Regard To Property Alienation

Vijayaratnam v. Rajadurai (1966) 69 N.L.R. 145

A married woman governed by the Tesawalamai is not a
femme sole ; she is subject to the marital power of her
husband. The right of the husband to give his consent to the
alienation or mortgage of his wife’s separate immovable
property is an incidence of his marital power.
 More Insights As Per The Facts Of The Case
• “The plaintiff and the 3rd defendant are husband and wife who are governed
by the Tesawalamai and were married after 1911 and before 1947. The 3rd
defendant, who was living in separation since 1951, obtained permission
from court in action no. 320 to sell, without the husband’s consent, certain
immovable property which belonged to her. Although the court authorized
her to sell the property at a price not less than Rs. 2,500- per lacham, she
sold certain lots at Rs. 500 per lacham to the 1st and 2nd defendants. In the
present action the plaintiff claimed that the sale should therefore be set aside
and declared null and void.
• Held, that, inasmuch as the sale by the wife was not in accordance with the
terms of the sanction given by court in action no. 326, the husband had
sufficient status to maintain this action.”
 Extra Case
• Seelackchy V. Visuvanalhan Chetty (1922) 23 N. L. R. 97 At 108
“ It is an essential feature of the community in almost all its forms that
the husband should be the manager of the common property. There is
no question that this is so in the Tesawalamai. He can freely sell
(Katharuvaloe v. Menathchipille (1892) 2 C. L. R. 132) and mortgage
(Muttu Krishna 124) the common property without the consent of his
wife.”
 Was Tesawalamai Always So Strict On The Rights
Of Women With Regard To Property Related
Rights?
• Some arguments suggest that Tesawalamai did not originally consist of such
disabilities.
• It is further argued that Roman Dutch Law principles which impose severe
restrictions on the independence of women within marriage were introduced
to Tesawalamai through efforts of filling gaps in Tesawalamai Law.
• When the concept of thediathettam is considered, it should be noted that the
courts had the tendency of interpreting it as the Roman Dutch Law principle of
community of property and made it a way to introduce Roman Dutch Law
principles to Roman Dutch Law.
 How Thediathettam Changed Over Time Through
Various Legal Instruments.
Before 1911, Thediathettam = Profits arising out of the estate of either spouse
during the marriage + Property Acquired out of the profits
• Manikkavasagar v. Kandasamy (1986) 2 S.L.R. 8
Only property acquired by a spouse during the subsistence of the marriage for
valuable consideration, such consideration not forming or representing any part
of the separate estate of that spouse, and profits arising during the subsistence
of the marriage from the separate estate of that spouse should be categorized
as thediathetam. The separate property of a spouse is that which he or she had
brought to the marriage or acquired during the marriage by conversion,
inheritance or donation made to him or her. Property purchased out of moneys
of the separate estate of the spouse (mudusom or dowry) would continue to be
part of such separate estate.
After 1911 And Before 1947
Jaffna Matrimonial Rights And Inheritance Ordinance –
After 1947
• Section 15. Property devolving on a person by descent at the
death of his or her parent or of any other ancestor in the
ascending line (the line of relationship traced backward or
through one's ancestors. One's father and mother,
grandfather and grandmother, etc., are in the line direct
ascending.) is called mudusam (patrimonial inheritance).
• Section 16. Property devolving on a person by descent at the
death of a relative other than a parent or an ancestor in the
ascending line is called urumai (non- patrimonial inheritance).
 After 1911 And Before 1947 - Thediatettam
Section 19 – “The following should be known as the thediatettam of any husband or wife,
a) Property acquired for valuable consideration by either husband or wife during the
subsistence of the marriage,
b) Profits arising during the subsistence of the marriage from the property of any
husband and wife.”

Section 20 (1) – The thediatetam of each spouse shall be property

common to the two spouses, that is to say, although it is acquired
by either spouse and retained in his or her name, both shall be
equally entitled thereto.
What Was The Difference That Was Made
Through The New Section To Thediathettam?

• Property purchased by a spouse,

• During the subsistence of the marriage,
• From the finance that they got from selling their separate
property became part of the thediathettam.
 Jaffna Matrimonial Rights And Inheritance
Ordinance As Amended in 1947
Section 19. No property other than the following shall be deemed to be
the thediatheddam of a spouse :-
(a) property acquired by that spouse during the subsistence of the
marriage for valuable consideration, such consideration not forming or
representing any part of the separate estate of that spouse. (Ex – X buys
new property from the money she got by selling one of her separate
property)
(B) profits arising during the subsistence of the marriage from the separate
estate of that spouse.
Section 20. On the death of either spouse one-half of thediatheddam
which belonged to the deceased spouse, and has not been disposed of by
last will or otherwise, shall devolve on the surviving spouse and the other
half shall devolve on the heirs of the deceased spouse.
 Your Task - Effects Of The Amendment as per
Kumaraswamy v. Subramanium (1954) 56 N.L.R.
44
• The repeal of the old section 20 and the substitution of the new section 20 have the
following effect:—
(A) if either spouse acquires tediatetam property on or after 4th July, 1947, no share in it vests
by operation of law in the non-acquiring spouse during the subsistence of the marriage;
(B) if the acquiring spouse predeceases (die before) the non-acquiring spouse without having
previously disposed of such property, the now Section 20 applies ; accordingly, half the
property devolves on the survivor and the other half on the deceased’s heirs ;
(C) if the non-acquiring spouse predeceases the acquiring spouse, the tediatetam property of
the acquiring spouse continues to vest exclusively in the acquiring spouse ; the new section 20
has no application because the tediatetam of the acquiring spouse never “ belonged ” to the
non-acquiring spouse.
Research On These Areas And Cases

• Manickckavasagar v. Kandaswamy (1986)2 S.L.R. 8

• Principles in Muslim law
• Mahr
• Maghar
• Kaikuli
According to the old law According to the new law
Property acquired during
the marriage All the properties that are
(Thediatettam/acquired acquired by either spouse
property) during their marriage from
their earnings

Profits arising from the

husband’s mudusam
and wife’s dowry
property