Beyond Converting to Unholy Deadlock, What Was Once and Is No Longer Holy Wedlock: A Case for Obtaining a Declaration of Nullity of Marriage, for Those Parties in a State of an Irretrievably Broken Marriage

Abstract

This paper provides for a possible legal framework for obtaining a declaration of nullity of marriage, for those parties who are married under the Marriage Registration Ordinance No.19 of 1907 (as amended) and are presently living in a state of a broken marriage that cannot be rehabilitated, at all. The cause of action for the institution of the case is a deadlock, within the marital union, caused due to an irretrievable breakdown of marriage. (It should be noted that the present paper is a revised and expanded version of my article of a similar name which I uploaded on 19th February 2019.) The source of power for the District Court to entertain the proposed application is founded under section 19 of the Judicature Act, No.2 of 1978, as amended. The substantive law for the proposed application is the common law, which is applicable for the declaration of nullity of marriage, and which accordingly deals with the grounds that vitiate the marital contract. This strand of the common law should be separated from the common law that is applicable for a judgment in the nature of vinculo matrimonii, which is based on marital fault. Firstly, the paper will highlight some significant reasons for having such an option, made available under the law. Upon that, it will set out the legal framework, proposed by this paper, for making the respective application to Court. Given that there are some significant cases in Sri Lanka, that have rejected the concept of breakdown of marriage, as part of the substantive law falling under section 19 of the Marriage Registration Ordinance, this paper will include a discussion of these cases (i.e. as to whether they are relevant to the proposed framework), while arguing the position that the application for nullity of marriage - material to this paper, stands independent to the position, mentioned in those judgments.