How To Get Your Child’s Custody During The Divorce Proceedings: Interim Custody Orders in Sri Lanka

Nikeshala Kaluthanthri / September 4, 2024

One of the most pressing concerns during divorce proceedings is the issue of child custody. Particularly when one parent is abusive. Many clients ask, “Who will have custody of the children while the divorce is ongoing?”. This question takes on even greater urgency when the well-being and safety of the children are at risk. And a parent is seeking full custody while the case is still in progress. Legal Framework for Interim Custody in Sri Lanka Under the Civil Procedure Code (CPC) of Sri Lanka, courts are empowered to issue interim orders that determine the custody, maintenance, and education of children while divorce proceedings are still ongoing. These interim custody orders are designed to protect the welfare of the children, ensuring that their needs are met while the court deliberates on the final custody arrangement. The court’s guiding principle in making these decisions is the best interests of the child, a standard that takes into account several factors such as the child’s age, health, emotional and psychological ties to each parent, and the overall home environment. Court’s Role in Custody Cases In cases where there is a claim of abuse or neglect, the courts take such allegations very seriously. If the other parent is abusive, it is essential to bring this to the court’s attention as quickly as possible. The court may issue orders to protect the child from harm, including restricting the abusive parent’s access to the child during the proceedings. Sri Lankan courts also have the power to issue a writ of habeas corpus to ensure that the child’s welfare is given top priority. This writ can be used to challenge unlawful detention or custody of a child and make sure the child is placed in the safest and most suitable environment during the divorce process. If the court believes that another court is more suited to handle the matter, such as a court in a different jurisdiction, it may direct the case to that court to better address the specific circumstances of the custody dispute. Key Legal Precedents in Child Custody Cases Over time, Sri Lankan courts have developed a rich body of legal precedents that guide custody decisions. One of the most notable cases is Ivaldy v. Ivaldy (1956) 57 NLR 568, in which the court held that while a father generally has a preferential right to custody, this right is not absolute. The mother can challenge this preference if she can demonstrate that the father is not acting in the best interests of the child. The court ultimately prioritizes the child’s welfare above parental rights. This principle has been reaffirmed in subsequent rulings, such as in Weragoda v. Weragoda (1961) 66 NLR 83, where the court emphasized that the child’s welfare takes precedence over the automatic custody rights of the father. The court thoroughly examines both parents’ ability to care for the child, including their moral character, financial stability, and emotional capacity to provide a supportive environment. In abuse cases, the court is even more vigilant in ensuring the child’s safety and well-being. The Best Interests of the Child Standard In all custody cases, Sri Lankan courts adhere to the principle of “best interests of the child,” which is an internationally recognized standard supported by various international conventions, including the United Nations Convention on the Rights of the Child (UNCRC). This standard compels the court to consider the child’s long-term well-being and development when making any custody decision. Courts often look into factors such as the child’s relationship with each parent, the parent’s ability to provide emotional support, and whether either parent poses a danger to the child. Steps to Take If You Are Seeking Interim Custody If you are in the process of seeking interim custody during a divorce, it is crucial to act quickly and strategically. The first step is to gather evidence of any abuse, neglect, or unsafe conditions that the other parent may be subjecting the child to. This evidence may include: Presenting this evidence to the court is essential in supporting your claim for custody. It is also highly recommended that you work with a lawyer who is experienced in Sri Lankan family law, especially in cases involving abuse or contentious custody battles. Your lawyer will help you navigate the complex legal procedures and present a strong case to the court on your behalf. Conclusion: Navigating Child Custody During Divorce Divorce is never easy, and child custody battles can add to the stress and emotional toll. However, by understanding your legal rights and the available mechanisms under Sri Lankan law, you can protect your children’s well-being during this difficult time. Whether you’re seeking interim custody or a permanent arrangement, the key is to prioritize the best interests of your child and present your case with solid evidence and expert legal support. Consulting a lawyer with expertise in family law and child custody matters is crucial. With their guidance, you can navigate the legal complexities and secure the protection and care your children deserve. Do read our blog on divorce law in Sri Lanka to understand this better.

All Resources, Property Law

Buyers Title Insurance in Sri Lanka: A Critical Tool for Securing Property Loans

Lihindu Premanayake / September 2, 2024

Introduction In the realm of property transactions, securing clear and marketable title is paramount. In Sri Lanka, the complexity of land ownership and the diversity of legal systems governing property rights often lead to title defects that can hinder the ability of landowners to secure loans. Defective title insurance, a relatively lesser known but vital tool, has emerged as a solution to these challenges, ensuring that even lands with imperfect titles can be used as collateral for loans. This blog explores the origins, development, and impact of defective title insurance in Sri Lanka. Understanding Title Insurance: Origins and Types Title insurance, which originated in the United States, was developed to address the uncertainties faced by landowners and banks due to defects in property titles. There are two main types of title insurance policies: In Sri Lanka, a unique model of title insurance, known as Defective Title Insurance, was introduced to address the specific challenges faced by landowners who lacked marketable titles—essentially titles that were not accepted by banks as security for loans. The Problem of Defective Titles in Sri Lanka Property rights in Sri Lanka are embedded within a complex web of legal systems, including Roman-Dutch law, customary laws (such as Kandyan, Thesawalamai, and Muslim law), and statutes introduced during colonial rule. This diversity, coupled with informal systems of land ownership, often results in titles that lack the formal documentation required by banks to extend credit. For instance, many landowners in rural areas possess only a single deed without proof of prior ownership, or they hold land through informal inheritance systems without proper testamentary documentation. Such titles, often described in non-standard measurement systems and lacking formal registration, were historically rejected by banks, making it difficult for landowners to use their property as collateral. The Introduction of Defective Title Insurance to Sri Lanka In the 1960s, the Sri Lankan government, recognizing the need to expand access to credit as a means of promoting social and economic development, sought solutions to the problem of defective titles. The conventional approach of implementing a Torrens title registration system and conducting cadastral surveys was deemed too costly and time-consuming. Instead, the government, through the Insurance Corporation of Ceylon (now Sri Lanka), introduced a defective title insurance scheme. This innovative insurance model was designed to cover known defects in property titles that banks identified as reasons for rejecting land as loan collateral. The first defective title insurance policies were issued in 1970, and to date, around 200,000 policies have been issued, allowing previously unmarketable lands to be used as security for loans. How Defective Title Insurance Works Defective title insurance in Sri Lanka does not aim to grant full legal title to landowners. Instead, it guarantees the marketability of the land by covering the specific defects that make the title unmarketable. The process typically involves the following steps: The Impact of Defective Title Insurance The introduction of defective title insurance had a significant impact on the Sri Lankan property market. By making previously unmarketable lands creditworthy, it enabled a broader section of society, particularly those in rural areas, to access loans for development and entrepreneurship. Banks, initially skeptical, became advocates of the scheme as it provided a reliable way to secure loans without the need for costly and time-consuming legal procedures. Moreover, the scheme allowed property developers to obtain insurance for large parcels of land with defective titles, making it easier to develop and sell subdivided plots. This, in turn, contributed to the growth of the real estate market in Sri Lanka. Conclusion Defective title insurance is a critical tool in Sri Lanka’s property market, particularly for landowners with imperfect titles. By providing a guarantee of marketability, it has enabled greater access to credit and facilitated the development of lands that were previously considered unmarketable. While the concept of title insurance is still evolving in Sri Lanka, its impact on the real estate sector and the broader economy cannot be understated. As the country continues to modernize its property laws and systems, title insurance will likely play an increasingly important role in securing property rights and promoting economic growth.