LAW OF PERSONS: CONTENT OF THE SUBJECT

PART ONE
General Law
1. Marriage under General Law
a. Marriage by registration and formalities
b. Customary Marriages
c. Marriage by Cohabitation and Repute
d. Breach of promise of marriage
e. Nullity of marriage
f. Legal consequences of marriage
2. Maintenance
a. Maintenance Act
b. Protection of Rights of Elders Act
3. Adoption
4. Custody of children & Guardianship40
5. Dissolution of marriage47
a. Judicial Separation
b. Divorce
6. Status of Illegitimacy and the Presumption of Legitimacy

PART TWO
Muslim Law
Thesawalamai Law
Kandyan Law
 2019 2019 2018 2018 2017 2017 2016
Subject Area
OCT APRIL OCT APRIL OCT APRIL OCT

Creation of the Marriage

1 1
Relationship
Customary Marriages and
Presumption of Marriage by 5 1
Cohabitation and Repute
Promise to Marry and Breach of
4 4
Promise to Marry
Nullity of Marriage 5 7 2 2,6 5

Legal consequences of Marriage

Maintenance 2 3 6 5 5 2
Adoption 6 4 2 5 6

Custody and Guardianship of Minors 5 3 4 3 3 3 5,6

Dissolution of Marriages 1,4 5 7 1 3,4
Status of Illegitimacy and the
2 6 6 4
presumption of Legitimacy
Adoption - Kandyan Law 9 9 9 12 12 6,12 10
Marriage - Kandyan Law 10 8 10 13 13 9

Divorce - Kandyan Law 8 10 13 13

Applicability (Thesawalamai) 13 10 11 8 8
Marriage (Thesawalamai) 14 11 9 9 12
Division of Property (Thesawalamai) 12 9 8 11

History and sources (Muslim Law) 14 11 14

Divorce(Muslim Law) 12 12 13 13
Adoption(Muslim Law) 11 6

Maintenance (Muslim Law) 12 13

1. MARRIAGE UNDER GENERAL LAW

 The Sri Lankan General Law of marriage has been considerably influenced by the Roman
Dutch law and the English law.

 The General law is accessed not only by the low country Sinhala people who as a result
of our colonial history do not have a legally recognized customary law but also by Tamils
(whether they are governed by the Thesawalamai or not) and by Kandyan who have a
choice of marrying under the Kandyan law or the General law

• The requirements relating to capacity to marry, guardianship and custody is governed

by the General Law.

Weatherly V Weatherly (1879)

“Marriage is not a mere ordinary private contract between the parties, It is a contract creating
a status and given rise to important consequences directly affecting society at large. It lies at the
root of civilized society”.
The marriage contract is like a commercial contract, but it has differences
1. A marriage cannot be entered into subject to conditions.
2. The objectives of marriage cannot be vied in terms of rights & duties.
3. Mutual rights of the husband and wife are fixed by law not by agreement.
The law recognizes a marriage upon the fulfillment of the requirements imposed by law. The
importance of these requirements –
If they are not fulfilled, the status and validity of the marriage is affected.
Related Statutes:
1. Marriage Registration Ordinance - No 19 of 1907 (MRO).

 The 1907 Marriage Registration Ordinance constitutes the general law on marriage in Sri
Lanka. The ordinance applies to marriage between Tamils and between individuals of
differing ethic and religious communities. Kandyan Sinhalese may choose to be
governed by the general law or Kandyan law. The ordinance does not govern marriages
contracted between Muslims.

2. Kandyan Marriage and Divorce Act – No 44 of 1952 (KMDA).

3. Muslim Marriage and Divorce Act – No 13 of 1951 (MMDA)

a. Marriage by Registration and Formalities

Formalities (capacities)
1) Minimum age of marriage
The Marriage Registration Ordinance No. 19 of 1907 sets out certain statutory requirements
relating to the capacity to marry:-

Section 15 (minimum age) – no marriage contracted after the coming into force of this section
shall be valid unless both parties to the marriage have completed eighteen years of age

(Section 15 of the MRO as amended by Act no 18 of 1995)

Kandyan Law – section 4 and 66 of KMDA was amended by Act no 19 of 1995.
Muslim Law – There is no concept of minimum age of marriage, but section 23 of the MMDA –
marriage of a girl who is not attained the age of twelve not to be registered without quazi’s
permission. This section could be read to understand that the consent of the quazi is required
for a marriage with a girl below the age of 12.
Section 363 (e) of the Penal Code as amended Act no 22 of 1995 is in with Muslim law.

2) Prohibited degree of marriage

Section 16 (prohibited degrees) – no marriage shall be valid
(a) where either party shall be directly descended from the other ; or
(b) where the female shall be sister of the male either by the full or the half-blood, or
the daughter of his brother or of his sister by the full or the half-blood, or a
descendant from either of them, or daughter of his wife by another father, or his
son's or grandson's or father's or grandfather's widow ; or
(c) where the male shall be brother of the female either by the full or the half-blood, or
the son of her brother or sister by the full or the half-blood, or a descendant from,
either of them, or the son of her husband by another mother, or her deceased
daughter's or granddaughter's or mother's or grandmother's husband.

Section 16 (b) of the MRO simplified.

1. Widow of son / grandson / father / grandfather
2. Sister (Full or half blood)
3. Daughter of his wife (by another father)
4. Daughter of Brother or Sister (Full or half blood) or descendant

Kandyan law – Sec.5 of KMDA & Muslim law – Sec. 80 of MMDA did not prohibit marriages
between ADOPTIVE children and ADOPTIVE parents and children who are related to each other
through adoption. But Sec. 364A (1)(a) of the PC - deals with Incest between adoptive relations
and adopted child. This section applies to all communities.
 Any marriage or cohabitation between parties standing towards each other in any of the
above-enumerated degrees of relationship shall be deemed to be an offence, and shall
 be punishable with imprisonment, simple or rigorous, for any period not exceeding one
year.

3) Subsisting prior marriage

Married person cannot contract a second marriage while the first marriage subsisting.
Sec. 362(B) of the PC provides the offence of Bigamy.
Sec. 18 of the MRO provides No marriage shall be valid where either of the parties there to
shall have contracted a prior marriage which shall not have been legally dissolved or declared
valid.
Kandyan law – Sec. 6 of The KMDA provides No Kandyan marriage shall be valid;
a. If one party there to has contracted a prior marriage;
b. If the other party to such prior marriage is still living. Unless such marriage has been
lawfully dissolved or declared valid.
Muslim law – It is permitted to contract a valid marriages provided that he has the financial
means and capability to fulfill his matrimonial obligations of all 4 wives. Sec. 24 of the MMDA –
require the quazi to be notified of the second or subsequent marriages.

Katchi Mohamed V Benedict 63 NLR 505

A married man who belongs to the Muslim faith at the time of his marriage and who
subsequently married second time under the MRO, a person not professing Islam while his
previous marriage is subsisting commits thereby the offence of bigamy within the meaning of
section 362B of the PC.
Abesundere V Abesundere 1998 1 SLR 185
The accused – respondent and his first wife the appellant both Roman Catholics were married
under the MRO. During the subsistence of the first marriage the accused registered a marriage
with one Miss Edirisinghe under the MMDA. The accused was convicted the offence of bigamy.
His defense was that prior to second marriage, both he and Miss Edirisinghe has embraced
Islam and as such, the second marriage was valid.
 4) Consent
Pursuant to a 1995 amendment to the ordinance, the minimum age of marriage was raised to
18 for both men and women. Since age of marriage is now the age of majority, parental
consent is no longer needed.
 A subsequent provision, however, authorizes parents to consent to a marriage involving
a minor. If a parent unreasonably withholds consent, a court may authorize the
marriage. Courts have held, however, that a parent's refusal to give consent will only be
overruled if the court is satisfied that the refusal is without cause and contrary to the
interest of the minor. Despite the requirement of parental consent for a minor to marry,
the ordinance provides that lack of proof of such consent does not render invalid
marriages registered under the ordinance.
However, courts have held in cases of unregistered marriages as well that want of consent
would not invalidate such a marriage after it had been consummated.
Sec. 34 (4) & 35 of the MRO – Parties to the marriage should express their consent to the
marriage by being present and signing the register. (Similar section in KMDA – Sec. 22 & 23 of
KMDA.)
Muslim law – it is not the bride but her Wali or her male marriage guardian who signs the
register of her behalf. Sec. 17(2) of the MMDA – requires the presence of the bridegroom, the
Wali and the person who conducted the Nikah ceremony at the time of the registration.
Gunaratnam V Registrar General2002 2 SLR 302
Sec. 15 of the MRO (amended in 1995) is an absolute bar to solemnizing a marriage involving a
minor below the age of 18. Therefore, such a marriage cannot be solemnized with parental
consent.
Registration
Registration of marriages is not mandatory under the ordinance. An entry made in the marriage
register is simply the "best evidence" of the marriage. The law recognizes a rebuttable
presumption of marriage by habit and repute.
Sec. 41(1) of the MRO – the entry made by the registration shall be the best evidence in courts
and in all proceedings where it is necessary to give evidence of the marriage.
Procedure to the registration of marriage - sec. 23,24,25 & 26 of the MRO
The Registration of Marriages Ordinance provides the procedure for the registration of
marriages.
Section 23 and 24 – one of the parties to the marriage should give notice of the marriage to the
Registrar of Marriages on a prescribed form signed by the party giving the notice and
subscribed in the presence of a Registrar of the division, a Justice of the Peace, a Notary or a
minister and two respectable witnesses

Section 25 – The Registrar should give publicity to the notice of marriage by posting it in his
office to enable any interested party to object to the intended marriage

Section 26 – after a specified time period the person who gave the notice of marriage may
apply for the issue of the Registrar’s certificate which is issued if no lawful impediment is shown
to the Registrar or the issuance of it is not forbidden or a caveat is entered

Also refer to sec. 33,34 & 35 of the MRO.

Section 33 – the production of the Registrar’s certificate to the Registrar or Minister who
registers the marriage is necessary for the lawful solemnisation of the marriage; objections to
the solemnisation on lawful impediments can be raised prior to registration

Section 35 and 35A – a marriage in the presence of a Registrar should be solemnised in his
office in the presence of two witnesses. The Registrar should enter in triplicate the statements
of the particulars of the marriage in his marriage register book and cause the entry to be signed
by the parties to the marriage and the two witnesses and signed by him. The third copy should
be transmitted by post to the female party to the marriage.

Muslim law – If the section recognizes a marriage then it is a valid marriage but sec. 16 & 17 of
the MMDA with registration.
Kandyan law – Sec. 3(1)(b) of the KMDA – any such marriage which is not so solemnized and
registered shall be invalid.
b. Customary Marriages

The MRO does not contain any section relating to customary marriages. It deals with only
registered marriages. However since Registration is only the best evidence of marriage under
section 41(1), Courts have developed a practice whereby marriages are recognized if they have
observed customary rites and practices.

A marriage under the general law can either be, Registered Or Solemnized according to
customary laws.
But the general law (MRO) will apply to customary marriages in terms of the capacity of the
parties.

Courts have given legal recognition to the practice of solemnizing customary marriages.

Kandyan law – KMDA unregistered marriages are unlawful. Section 3(1)(b) and section 28,
Therefore, customary marriages are not recognized.
Muslim law - MMDA customary marriages not registered are valid in Islamic law.

It is difficult to find the essential elements of a valid customary marriage because the customary
practices may differ from region to region; from one community to another. Examples;
- Christian marriages- solemnizing marriage in church.
-Buddhist marriage- performing the poruwa ceremony.
-Muslim marriage- performing the Nikah ceremony.
-Hindu marriage- tying the Thali.

Case Law;
1 Thiagarajah Vs Kurukkal 25 NLR 89
Held; Marriageinvalid, as the girl was 11 years and was below the minimum age of marriage.
 2 Wijegunawardene Vs Gracia Catherine 1984 2 SLR 381
Held; A marriage would become valid if it was solemnized according to the customary rites and
ceremonies.

3 Chellappah Vs Kumaraswami 18 NLR 35

Held; Hindu customary rites were observed. Failure to register the marriage did not invalidate it.

4 Sophia Hamine vs Appuhamy 23 NLR 353

Held; Poruwa ceremony was observed in the presence of the relation. Valid customary rites
were observed.

5 King Vs Perumal 14 NLR 496

Held; Koorai Ceremony (presenting Saree) as important as the Thali Ceremony.Since there are
no fixed practices the best method to find out if the parties have satisfied the concept of
minimum ritual followed by the community which they belong to.

6 Soosaipillai Vs Parpathipillai 1985 2 NLR 55

court held that all three ingredients of the Kalam ceremony did not have to be shown to have
been strictly adhered to and the minimum ceremony and the cohabitation was sufficient to
raise the presumption.

7 Ratnammah Vs Rasiah 48 NLR 475

Held; Tying of turmeric symbolic of Thali was valid because it was the “spirit and the intention
behind the act which matters”

8 Selvarathnam Vs Anandavelu 42 NLR 487

Held; The priest was not present. No Thali was tied. No sign of camphor being burnet. No
coconut being broken.
Basic features of minimum ritual not observed.
If a customary marriage is to be recognized some acceptable ritual should have been taken
place.Where the custom carried out is a question of fact, it must be proved by the one who
alleges it to exist.

c. Presumption of marriage by Habit and Repute

When two parties,

 Lived together as husband & wife and,

 Recognized as married persons by relatives & friends,

presumption is that they are validly married and not in concubinage until proved otherwise.
But,
This is only a presumption. It does not create a valid marriage by living together.

Legal meaning of “presumption”

A legal assumption drawn from the existence of certain facts. A conclusion is drawn from the
proof of facts or circumstances and stands establishing facts until the contrary is proven.
The presumption is not drawn when there are legal impediments to the union.
This concept is used to establish a customary marriage.
The party who claims that there was no marriage has to prove against the presumption.

Earlier view of the presumption

Presumption can be drawn even in the absence of evidence of presumption of customary rites.

 Tisselhamy v Nonahamy 2 NLR 352.

parties were dead and there was no evidence of marriage ceremony but the Supreme Court
presumed the existence of an availed marriage on the evidence that the parties had cohabited
together for a very long time and aware in marriage “publicly and on a big scale”.
  Valliamma v Annamma 4 NLR 08
Widower brought his late wife’s sister to live with him and she bore him 7 children over the 20
years during which they cohabited. Their marriage was not registered and there was no
evidence that the marriage was solemnized by customary rites. The court did not look into
whether the customary rites were followed at the time of marriage and held that the
presumption of marriage had not been rebutted.

 Dinohamy v Balahamy 29 NLR 114

Man after the death of his wife brought another woman in a possession holding other
ceremonies familiar to them and lived with her about 20 years.

Later application of the presumption

Depended on the performance of customary rituals at the beginning of the marriage

Kandiah v Thangamany – living together even for a long period of time is irrelevant if no
evidence is forthcoming as regards the performance of customary rites at the time of marriage.

Guneratne v Punchihamy – when on party to the marriage is living, such party should prove
before the court of law that they underwent customary rites in solemnizing their marriage.
Failure of the surviving female party to prove the same led the court to declare that the
presumption of marriage was rebutted.

Fernando v Dabarera – held that evidence of marriage ceremonies or religious rites is not
essential to establish marriage by habit and repute if both parties to the marriage are dead and
the marriage itself was contracted at a very early date

Sedris v Roslin – man lived with woman from different caste and was treated as outcast by
relatives. Supreme Court held that presumption of marriage was not rebutted and held that the
test is whether the conduct of the parties produced among their relatives and friends a general
belief that they were really married. The recognition given by society to the marriage in this
case was ostracizing the man. This negative conduct is exhibited only if the parties are married
and not if they lived in concubinage.
In simple words recognition of a union by society may be displayed either by evidence of
acceptance and approval or by hostility and animosity. Evidence of either kind is equally
acceptable as it only serves to establish society’s “recognition” of a union.
The presumption of marriage can be made only in situations where there is evidence of the
performance of customary rites.

Therefore, if there is an obvious impediment to a marriage (such as a subsisting prior marriage).

However, long continued the cohabitation has been presumption of marriage will not arise.
The presumption can be rebutted by proof that they are not living together in consequence of a
valid marriage. The burden of rebutting the presumption rests on the person who alleges that
there was no lawful marriage and there exists only concubinage.

It should be noted that presumption of marriage by cohabitation and repute can only be
displayed by means of strong and cogent evidence.

d. Breach of promise of marriage

Promise to Marry

A promise means something in the shape of an engagement from one person to another to do
or not to do a specified thing.

Unlike the early common law which recognized the specific performance of a promise to marry,
in the modern law of Sri Lanka, the only sanction for a breach of promise is the availability of a
right to claim damages.
Section 20 of MRO
1. No suit or action shall be any court to compel the solemnization of any marriage by
reason of any promise or contract of marriage, or by reason of the seduction of any
female, or by reason of any cause whatsoever,
 2. No such promise, or contract, or seduction shall vitiate any marriage duly solemnized
and registered under this ordinance.
3. Nothing herein contained shall prevent any person aggrieved from suing for or
recovering in any court damages which are lawfully recoverable for breach of promise of
marriage for seduction or for any other cause.

Offer & Acceptance

Fundamental elements to the creation of a marriage contract are an offer and acceptance. It is
not necessary that the offer be in formal language. The key requirement is that both parties
comprehend that there was a clearly intended offer of marriage. A statement of the intention
to marry to a third person, absent any other indicated intent, is not enough.
An acceptance of an offer to marry must be given within a reasonable period of time. Such
acceptance need not be formal but may be implied from the promisee's behavior. For a
marriage contract to be enforceable, there must be a showing that there has been a meeting of
the minds of the individuals to the agreement.
A promise to marry induced by duress is invalid. Similarly, a promise to marry made by
fraudulent inducement—or fraudulent concealment of facts that would prevent the making of
the agreement if revealed or disclosed—will render the promise invalid and relieve the
innocent party from all liability.
A promise to marry must not be based solely upon illegal or immoral consideration, such as
sexual relations between the parties. A promise based upon legal consideration will not,
however, be vitiated merely because unlawful sexual intercourse took place between the
parties either prior to or following the promise.
A contract to marry may be manifested by many promises made at different times; however,
there is only a single contract, and only a single breach can take place.
Provided that no action shall be for the recovery of damages for breach of promise of marriage,
unless such promise of marriage shall have been in writing.
A “promise” means something in the shape of an engagement from one person to another to
do or not to do a specified thing.
Early common law; Recognized the specific performance of a promise to marry
Modern Law; The only sanction for a breach of promise is the availability of the claim damages.
First line of cases;
1. Beling vs Vethacan 01 ACR 01
An implied promise to marry was gathered from the letters. The letters spoke of fixing a date for
the “happy day”.

2. Jayasinghe vs Perera 09 NLR 62

Parties not agreed orally to marry each other, but the defendant had not sent a formal letter as
requested by the father of the plaintiff. He did write a letter claiming that he was not agreeable
to the father’s letter.
Held; The letter held an existence of the defendant’s promise to marry the plaintiff. An
unqualified admission of an oral promise.

3. Gunasekara vs Amerasinghe 17 NLR 425

Secondary oral evidence was allowed as proof of a previous written promise to marry.
Court accepted the evidence of the plaintiff & her brother who recollected the contents of the
letters written by the defendant.

4. Karunawathie vs Wimalasuriya 42 NLR 390

A promise to marry could be gathered only if the letter was read in conjunction which oral
evidence. Therefore the action of breach of promise failed.
This case did not follow Jayasinghe vs Perera.

5. Cooray vs Cooray30 NLR 310

Promise to marry must not be literally construed.
A marriage settlement signed by the plaintiff her mother and the defendant was sufficient to
constitute to a promise.

Second line of cases;

1. Udalagama vs Boange SC 444 (Privy Council)
Per Lord Tucker;
Policy of the Sri Lankan legislature had been to limit to which the promise itself was in writing
the cases in which an action could be brought.
It may be contained in one or more documents. Documentary evidence.
Which does not in express terms contain a promise to marry is insufficient.
Even though it may afford evidence of an oral promise to marry.
Distinction must be made between,
Writing which contains the promise to marry and writing which may afford confirmation of a
previous oral promise.

Therefore,
Writing which evidences a previous oral promise is insufficient to maintain an action for the
breach of promise.
The need for an express promise to marry or,
To confirm a previous oral promise to marry.
This would admit the working of the promise and continuing willingness to be bound by it.
 2. Missi Nona vs Arnolis 17 NLR 425
Notice of marriage to a Registrar of marriages does not amount to a written promise of a
marriage within the meaning of MRO.

3. Ana Fernando vs Jokins 30 NLR 274

The signing of the betrothal register before a parish priest is considered a valid promise to
marry.

4. Muthukuda vs Sumanawathi 65 NLR 205

Followed the Privy Council decision Udalagama vs Boanage
The document relied on by the plaintiff as constituting the promise of marriage was the Nakath
paper
.
5. Wijeweera vs Nanayakkara 77 NLR 208
The defendant’s letter said that “it’s very near for our marriage”
Since the defendant said that he will marry the plaintiff at a near date.
Held; he made a promise of marry.

6. Kumarathilake vs Jayanthi 2 NLR 9

A letter written by the defendant not only promised to marry but also contemplated the
aftermath of the marriage the two of them.

Breach of promise of marry.

Unless there is a legally justifiable reason, an unwillingness to perform one's promise to marry
creates a breach of promise to marry. Mere postponement of the wedding does not constitute
a breach unless it is done arbitrarily and for no good reason. In such case, the postponement
can be regarded as equivalent to a refusal to comply with the marital promise.
For an action to breach of promise of marriage, proof of an express refusal is not essential.
Sawyer vs Tringham 15 NLR 353
The defendant had written to the plaintiff asking her to relieve him from the engagement as he
was living with a mistress.
Refusal may be gathered from the conduct of the defendant in light of the surrounding
circumstances.
Note: “Betrothal” implies the promise of marriage.
In Roman-Dutch Law,
Knowingly accepting a promise of marriage from a married person would bar one from
asking for damages.

Chandrasena vs Karunawathie 57 NLR 298

Held; the defendant, a married man, had made a promise of marriage, an action for breach of
promise was not available.

Assessment of Damages
Damages for breach of promise of marriage is provided as pecuniary compensation.
The action for breach of promise is sui generis having features in common with, “Action on
Contract” and “Action on Delict”
Damages may also be claimed for the injuria done to the plaintiff.

Damages recoverable as an action on Contract

- Monetary loss sustained by the plaintiff
Damages can be recoverable.
o In anticipation of the marriage, plaintiff gave up a lucrative job and cannot
obtain a comparable job afterwards
o Wasted expenses to entertain guests at the wedding (provided that the
expenditure is reasonable, the social position
 - Prospective Loss
o Where the defendant is in a good financial position because of the breach.
o Financial status of the defendant will have a bearing on the assessment of the
damages.
o Prospective loss must directly flow from the breach.

Delictual aspect of the action - for injuria

Damages to be claimed for the contumelia suffered by the plaintiff since the breach of promise
is regarded as impairment of the personal dignity of reputation of the other party.
Factors relevant in assessing the damages;
- Duration of the engagement
- If it had been announced publicly. (See – Mualin vs De Silva 23 CLW 107)

Muthukuda vs Sumanawathie 65 NLR 205

Using delict as an alternative action.
In this particular case there was humiliation as the defendant was not present on the day of the
wedding. Therefore, if the marriage was broken off under humiliating circumstances , which
caused grave injury to the plaintiff, delictual damages are available.
Consequences attached to a woman and that she may have diminished opportunity of marriage
in the future.
Aggravated damages;
If the defendant had acted with fraud or malice or if he had attached plaintiff’s character in or
outside court (See – Guggenhelm vs Resenbaum 1961 (4) SA 21)
Bona fides will be a mitigating factor (See – Smit vs Jacobs1918 OPD 30)
Kuruppu vs IranganiGunasekara 47 NLR 505
The plaintiff induced the defendant to promise to marry her - The breach was due to the
defendant’s mother refusing - Period of engagement was 5 months - Very little publicly knew of
this engagement.
Held; nothing to suggest that other possible suitor could have been discouraged; lack of
evidence of dishonourable behavior of the defendant.
This case therefore refused damages.

Wijeweera vs Nanayakkara 77 NLR 208

Nominal damages were awarded. The plaintiff did not suffer substantial because the promise to
marry had been made after a period of intimacy.

Fernando vs Fernando 4 NLR 285

The court has the discretion to vary the prescribed penalty so that it comes close to the actual
damage caused.

De Silva vs Juan Appu 29 NLR 417

A pre-estimate of the plaintiff’s probable or possible interests in the performance of the
marriage was made.
The parties had to prove the stipulate sum was out of proportion to the injury sustained. If they
failed to prove then the stipulated sum was to be awarded.
  Promises to marry made by minors are voidable at the option of the minor. A minor may
sue on such a promise but may not be sued, even if he or she has ratified the promise
after coming of age. On reaching majority a new and independent promise to marry the
other person will be binding.

e. Nullity of Marriage

• Legal recognition of a marriage depends on the satisfaction of the legal requirements

imposed by the legal system.
• Specific requirements -
Deals with the capacity to marry. This is generally dealt by the statute.
• General impediments -
Factors vitiating consent insanity, intoxication, duress, mistake, fraud.
• Nullity is not same as the same as the divorce. Nullity is declaration that a valid marriage
never existed.

Definition of Nullity of Marriage

• The invalidity of a marriage due to some defects existing at the time the marriage was
celebrated. (or sometime arising afterwards). In nullity law, there are two types of
marriages that may be annulled or cancelled. There are void marriages and there are
voidable marriages.

Simplified definition
• Void
It was never in the eyes of the law a valid marriage.

 Technically, if your marriage never took place, then there is no need to go to court to
obtain a decree of annulment - you may simply act as though the marriage never
happened. However, it is advisable to obtain a court order declaring that your marriage
is annulled in order to remove any doubt.
• Voidable
Valid until made void by court decree of annulment. This does not end a marriage
retrospectively.

 Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid
marriage. Nullity is a declaration that a valid marriage never existed. It is important to
be aware that a church annulment does not have any legal effect. It does not mean that
you may legally remarry - although it may mean that you can remarry in the eyes of the
church.

Actions of nullity of marriage (Section 607 of the Civil Procedure Code)

1. Any husband or wife present a plaint to the District Court within the local limits of the
jurisdiction of which he or she (as the case may be) resides, praying that his or her
marriage may be declared null & void.
2. Such decree may be made on any ground which renders the marriage contract
between the parties void by the law applicable in Sri Lanka

Void Marriages (Section 46 of the MRO)

Sets out various grounds on which a marriage may be declared null and void.
o If both the parties to any marriage shall knowingly willfully intermarry under the
provisions of this ordinance in any place other than that described by the
Ordinance or,
o Under a false name or names or,
o Except in cases of death bed marriages under intense of without certificate of
notice duly married or,
o Shall knowingly or willfully consent to or acceptance in the solemnization of the
marriage by a person who is not authorized to solemnize the marriage.
The marriage of such parties shall be null and void.
• Queen vs Kanter Chinnathamby 1884 6 SCC 126
Dealt with the importance of proving requisites of knowledge and willfulness to render the
marriage null and void by virtue of this provision.

• Wijegunawardene vs Gracia Catherine 1984 2 NLR 381

Held; The parties willfully went through a marriage ceremony in church knowingly fully well
that the certificate had been issued.
Therefore the marriage is null and void in terms of section 46 of MRO.

In addition to section 46 of the MRO,

A marriage may be rendered void under;
Section 15 – Prohibited age of marriage
Section 16 – Prohibited degrees of relationship
Section 18 – Second marriage without legal dissolution of first marriage invalid.

Consequences of a void marriage

A void marriage does not entail any of the legal consequences of marriage as it is invalid from
the beginning.
1. The woman does not acquire the husband’s domicile.
2. The spouses do not succeed each other intestata
3. Children are rendered illegitimate.
4. Adultery does not occur.
5. Nullity of a void marriage is absolute.

Consequences of a voidable marriage

Whereby a marriage is valid for all purposes unless until a decree of nullity is obtained.
Applicable in a situation where one party has caused an injustice and the marriage remains a
marriage until one of the spouses seek to get rid of the tie.
A marriage is voidable upon;
 Duress
Impotence
Prenuptial strupum
Mistake
Basically,
The non-compliance does not strike at the root of the contract.
Consequences;
1. Wife acquires the domicile of the husband
2. Children are legitimate until a decree of nullity is granted.
In Sri Lanka,
There is reference to voidable marriages in the MRO and the CPC
Case law has given recognition to voidable marriages.
• Navarathnam vs Navarathnam 46 NLR 361
The defendant had given birth to a child about 3 months after marriage, the plaintiff had been
unaware that the defendant was pregnant.
The plaintiff sued for a declaration that the marriage was null and void.
Held; that the marriage was voidable and not void as such the marriage was good until it was
annulled.
The decision in this case is consistent with Roman-Dutch law where the;
1. Impotence of either spouse and ,
2. Prenuptial strupum of the wife, resulting in pregnancy at the time of marriage
renders a marriage voidable.

• Fernando vs Peiris 50 NLR 40

Dealt with an action for nullity on the ground for incurable impotency.

Doctrine of putative marriage

The word putative is defined as being an alleged, implied or presumed idea that is accepted as
being true. A putative marriage is one that does not have any real legal standing but was
entered into in good faith by at least one participant.
A putative marriage may have originally looked like a civil marriage, for example, but would
actually be invalid. Additionally, a putative marriage is not a common law marriage.
Common law marriage is a legal marriage that is usually based on the time in a relationship and
actions of a couple. There is no actual legality in a putative marriage, although the individuals in
such a marriage may believe that they are legally married.
Due to the complicated nature of a putative marriage, legal measures have been set forth to
protect the individuals involved in such a marriage. Sometimes only one spouse can obtain
putative status, as only one spouse would have been falsely led to believe that his or her
marriage was legal. A common reason for a marriage to be putative is that one spouse is still
legally married to someone else.
A putative spouse is one who enters the marriage in good faith. If one partner enters the
marriage while knowingly deceiving the other partner about a fact that would make the
marriage null and void, that partner is not considered to be a putative spouse. Only the spouse
who was misled is protected.
The putative spouse can sue for damages but the other spouse cannot. If both spouses are
putative, meaning that both entered the marriage in good faith and a technicality prevented
them from having a legal marriage, then the marriage can be made valid with the removal of
that technicality
This is an exception to the rule that a marriage is null and void ab initio has none of the
consequences of a valid marriage.
Therefore some of the consequences of a valid marriage attached to a putative marriage, such
as normal proprietary consequences of a valid marriage.
• Fernando vs Fernando 70 NLR 534
The petitioner had contracted a marriage with the first respondent concealing the fact that she
had been previously married and that she had 8 children by that marriage.
The first respondent was ignorant of this fact at the time of marriage;
Per Weeramanthri,
It must be presumed that the first respondent entered into the marriage bona fide.Therefore
the law in regard in putative marriages would apply and the children of union would be deemed
legitimate.
f. Legal consequences of Marriage

In early Roman-Dutch common law marriage imposed many legal disabilities on a woman both
in relation to her person and her property.
Her status that was significantly inferior to that of her husband.
Later on, the law of Sri Lanka through legislative reforms, gradually did away with these
disabilities. Thereafter a married woman enjoyed the same status enjoyed by a feme sole
Feme Sole –
An unmarried female at a full age.
A married woman who is a independent of her husband with respect to property.
The common law restrictions continue to influence a married woman’s right to contract for
household necessaries, for herself and her family living in her matrimonial home.
This right to contract for household necessaries was separate from; Her right of support
defendant on the fact of marriage and the establishment of a common household

Overview of the legal consequences of marriage

1. Domicile of a married woman

o The domicile of a married woman is the same as and changes with the domicile
of her husband
o She acquires her husband’s domicile.
o She has no capacity to acquire a separate domicile of her own, not even if she is
judicially separated.
o This is a consequence of the union between husband and wife brought about by
the marriage tie.
 2. Concept of marital power

o Early Roman-Dutch law,

The wife was legally inferior to the husband.
She was regarded as a minor under the guardianship of her husband.
Though she was a feme sole prior to marriage, after the marriage she was made defendant and
vulnerable.
The marital power of the husband denied any legal recognition to the wife.
o The marital power of the husband extended,
1. Power over his wife’s person.
2. His control over her proprietary rights.
o Under Roman-Dutch law marriage created a community of goods between
husband and wife and
Placed the wife under the marital power of the husband
Note:
The above restrictions were removed through the Matrimonial Rights and
Inheritance Ordinance of 1876 and Married Women’s Property Ordinance of 1923.
Note:
The inferior position of the wife could only be avoided by means of an anti-
nuptial agreement.

 Anti-nuptial Agreement:
An agreement whereby the parties set out terms & conditions by which their marriage is to be
governed
However, certain aspects of marriage such as;
- The duty of support
- Conjugal fidelity
- Marital privileges
Could not be excluded
 3. Locus Standi in Judico
Early Roman-Dutch law – a married woman was unable to sue or to be sued in legal
proceedings.
Husband’s assistance is needed.

Situations in which a married woman had locus standi

o Criminal matters
o Matrimonial actions
o If the husband deserted her
o If the wife carried on a trade or business
Matrimonial Rights and Inheritance Ordinance (1876) – under section 20 9later on repealed)
expended upon a married woman’s locus standi.

2019 2019 2018 2018 2017 2017 2016

Subject Area
OCT APRIL OCT APRIL OCT APRIL OCT

Creation of the Marriage

1 1
Relationship
Customary Marriages and
Presumption of Marriage by 5 1
Cohabitation and Repute
Promise to Marry and Breach of
4 4
Promise to Marry
Nullity of Marriage 5 7 2 2,6 5
Legal consequences of Marriage

Source: Law of Persons lecture slides (2019) by Mr. Shehan C. Perera (Attorneys-at-Law)
Compiled by: Pro|Studies