Gender and Land Rights Database

Sri Lanka

Women's property and use rights in personal laws

The body of laws relating to marriage consists of the general law, customary law and personal law. The general law governs most marriage-related matters for Tamils, whereas Kandyan Sinhalese can choose to be governed by the general law or their customary laws. Muslim personal law applies to Muslims (16).

The Marriage Registration Ordinance, 1907, amended in 1995:

  • It is the general law on marriage and applies to marriage between Tamils and individuals of differing ethic and religious communities.
  • In 1995, the minimum age of marriage was raised to 18 for both men and women. However, parents must consent to a marriage involving a minor. If a parent unreasonably withholds consent, a court may authorize the marriage. The lack of proof of such consent does not render invalid marriages registered under the ordinance.
  • Registration of marriages is not mandatory. Thus, customary and religious marriages, including those solemnized according to Hindu, Buddhist and Christian rites, are considered as valid although not registered.
  • Upon proof that a man and woman have cohabited as husband and wife, the law presumes that they are living together in a valid marriage, unless the contrary is proved (16).
  • Divorce may be sought in case of: i. adultery; ii. malicious desertion; and iii. incurable impotence at the time of marriage.

The 1889 Civil Procedure Code permits either spouse to petition for dissolution of marriage two years from the date of a decree of judicial separation or where there has been a separation a mensa et thoro, from bed and board, for seven years. However, courts have not been consistent in applying this provision.
A draft Matrimonial Causes Act, which explicitly introduces irretrievable breakdown of marriage as a new ground of divorce, is under consideration (16).

The Maintenance Act, 1999 and Civil Procedure Code, 1889:

  • The act requires any spouse with sufficient means to maintain the other spouse, if such individual is unable to maintain him or herself.
  • An order for maintenance will not be awarded if the applicant spouse is living in adultery or both spouses are living separately by mutual consent.
  • The Act also imposes a duty on a parent to provide for the maintenance of all minor children, needy adult offspring aged 18-25 and disabled offspring.
  • While an action for divorce is pending, either spouse has the right to enforce the other's obligation of support, under the Civil Procedure Code. The applicant-spouse needs to prove financial need and the other spouse’s ability to provide the required support
  • On the dissolution of marriage, courts have discretionary powers regarding maintenance awards under the Civil Procedure Code. A court may issue any order it thinks fit with regard to transfer of property or monetary payments of maintenance for the benefit of either spouse (16).

The Married Women’s Property Ordinance, 1923:
-  Is the general law on matrimonial property rights.

- A married woman is capable of holding, acquiring and disposing of any movable or immovable property as if she were a femme sole, without the consent or intervention of her husband. This applies to all property belonging to her at the time of marriage and property acquired or devolved to her after marriage. She also has the same remedies and redress by way of criminal proceedings for the protection and security of her separate property (16).

The Kandyan Marriage and Divorce Act, 1952, amended in 1995:

  • The 1995 amendment brought the minimum age of marriage to 18 for both sexes. Marriages in violation of this age requirement are void, unless the parties cohabit as husband and wife for one year after attaining the legal age, or if a child is born before either party has attained the legal age.
  • A second marriage is invalid, if the first one has not been legally dissolved.
  • A marriage is presumed to be diga, whereby the bride moves to the husband’s house or that of his parents, if there is no evidence as to its character.
  • A valid Kandyan marriage renders legitimate any children born to the parties prior to such a marriage. Legitimized Children are entitled to the same rights as those born subsequent to a marriage (16).
  • The act governs divorce only among Kandyans married under the act. Divorce may be sought on the grounds of: i. adultery by the wife; ii. adultery by the husband, coupled with incest or gross cruelty; iii. continued and complete desertion for two years; iv. inability to live together; and v. mutual consent.
  • An application for divorce must be presented to the district registrar, who may use discretion in granting or refusing to grant the divorce.
  • A district registrar, in granting the dissolution of a marriage, may order the husband to pay a certain amount of money or provide other support for the maintenance of his wife, children or both.
  • Judicial separation is not included. However, Kandyan Sinhalese who choose to be married under the Marriage Registration Ordinance may seek judicial separation under the Civil Procedure Code (16).

The Muslim Marriage and Divorce Act, 1951, amended in 2006:

  • The act specifies some requirements for a valid marriage; those requirements left unspecified are governed by the law of the sect to which the parties belong.
  • A minimum age requirement for valid marriage is not specified. However, where a marriage involves a girl below 12 years of age, the act requires consent of the Quazi, Islamic judicial officer, to register the marriage.
  • The consent of the wali - guardian - is required for the marriage of women of the Shafi sect, though the Quazi may overrule the consent requirement if it is unreasonably withheld.
  • The wali must communicate the bride’s consent to the marriage to the Quazi, though the act does not provided for a mechanism to manifest such consent.
  • Registration of marriage is required, although non-registration does not render a marriage invalid.
  • A woman of the Hanafi sect is permitted to enter into a marriage contract on her own, upon attaining puberty (16).
  • Polygamy is permitted, provided that the husband gives notice to the Quazi of his intention to contract a subsequent marriage.
  • A husband who wishes to divorce his wife may pronounce talak unilaterally to repudiate the marital tie without following any prescribed judicial procedures. The pronouncement does not need to be made in the presence of or communicated to the wife (16).
  • - A wife may seek divorce on the grounds identified with fasah divorce, namely: i. failure or inability of the husband to provide support; ii. malicious desertion; iii. cruelty and ill-treatment; iv.  “continued dissension and quarrels”; v. husband’s leprosy; vi. husband’s insanity; and vii. impotence (16).
  • However, the availability and scope of fasah divorce depend on the sect to which the parties belong (16).
  • Although maintenance after divorce is not recognized under Muslim personal law, the act provides three situations in which a divorced wife may claim maintenance: i. until registration of the divorce; ii. during iddah, the period of time that a divorced wife must remain unmarried; and iii. if the  woman is pregnant at the time of registration of the divorce, until she delivers the child.
  • The Qazi has exclusive jurisdiction over any claim for maintenance by or on behalf of a wife, legitimate child or illegitimate child of whom both parents are Muslims (16).
  • Under Muslim law, women are capable of independently acquiring, holding and dealing with property (16).

The Matrimonial Rights and Inheritance Jaffna Ordinance, 1911, amended in 1947:

  • Applies to Tamils in property matters.
  • Movable or immovable property a woman acquires during or before marriage remains her separate property. A woman has the power to deal with her movable property during her lifetime without the consent of her husband. However, a married woman may deal with or dispose of any immovable property to which she is entitled only with the written consent of her husband, except in the case of last wills.
  • Property acquired by either spouse during marriage using the couple’s shared funds or estate is called thediatheddam. An undivided half-share of thediatheddam vests automatically in the non-acquiring spouse. Although a husband cannot donate the wife’s share of thediatheddam under any circumstances, he may sell or mortgage it.
  • The law ceases to apply to a Tamil woman during the course of her marriage to a foreign man, but applies to both husband and wife in cases of marriage between a Tamil man and a foreign woman (16).

- The Establishments Code, the guideline of the public service published in 1985, stipulates conditions of maternity leave for employees in the public sector. According to government regulations passed in 1992 and amended in 1997, public sector female employees are entitled to a 12-week maternity leave irrespective of marital status, cause of pregnancy or duration of employment. Maternity benefits include two daily half-hour nursing breaks for a six-month period (16).

- Two laws govern maternity benefits for female workers in the private sector:
> The Shop and Office Employees Regulation of Employment and Remuneration Act, 1957 which recognizes a 12-week maternity leave for the first two pregnancies and a six-week leave for subsequent pregnancies to workers in shops and offices (16).

> The Maternity Benefits Ordinance, 1939 which recognized the right to maternity leave to female workers in any “trade”, excluding “those whose employment is of a casual nature.”

Both laws prohibit employers from terminating their female employees on the basis of pregnancy, confinement or any related illness. Furthermore, employers cannot give notice of termination to a woman while she is on maternity leave (16).

- The  Factories Ordinance, 1942 amended in 2002, increased the number of overtime hours women and young persons may work. However, such employment may be prohibited or restricted “if it appears that such overtime employment will prejudicially affect the health of such women or young person.” (16)

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography