Legal procedure of divorce in Nepal: Divorce lawyers in Nepal
The formal dissolution of marital relationship of husband and wife is called divorce. The Civil Code, 2017 regulates the duties and responsibilities arising out of divorce. If both the husband and wife so desire, they may divorce at any time.
1. The legal provisions on divorce and relevant Court:
The legal provisions and procedures related to divorce are mentioned under section 93 to section 104 of the Civil Code, 2017 and for the divorce, a petition is filed to the relevant district Court. The petition can be filed in the district where the marriage has been registered. Also, the petition can be filed in the district where the opponent is residing.
2. Legal provision pursuant to which the divorce can be filed without the consent of husband or wife:
Divorce can be filed by any interested party (husband or wife). The husband or wife can file for the divorce without consent of the spouse in any of the following circumstances.
A. Husband may effect divorce:
(a) Except where the husband and wife are living separately after obtaining their partition share or separating bread and board in accordance with law, if the wife has been living separately for three or more consecutive years, without consent of the husband;
(b) If the wife deprives the husband for the maintenance costs or expels him from the house;
(c) If the wife commits an act or conspiracy likely to cause the grievous hurt or other severe physical or mental pain to the husband; or
(d) If the wife is proved to have made sexual relation with another person.
B. Wife may effect divorce:
(a) Except where the husband and wife are living separately after obtaining their partition share or separating bread and board in accordance with law, if the husband has been living separately for three years or more consecutively, without consent of the wife;
(b) If the husband deprives the wife for the maintenance costs or expels her from home;
(c) If the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife;
(d) If the husband concludes another marriage;
(e) If the husband is proved to have made sexual intercourse with another woman; or
(f) If the husband is proved to have raped the wife.
3. Court procedure for divorce:
(a) Petition to be filed for divorce.
The husband or wife, as the case may be, desiring to get divorce is required to file a petition in the concerned District Court.
(b) Notice be given to the other party.
The concerned District Court gives notice of petition to another party through officials of Court.
(c) Statement of defense to be submitted by the other party.
After getting notice of the petition, the receiving party must file the statement of defense within 21 days. Provided that in a circumstance beyond his or her control the time-limit for submission of of statement of defense can be extended for fifteen days.
(d) Mediation to be made between husband and wife.
If a petition is filed for divorce, the Court shall, to the extent possible try and convince both the parties and conciliate them to solve the dispute.
(e) Partition of property to be effected before divorce.
(1) If divorce is to be effected because of the husband, the Court shall, if the wife so demands, cause partition to be effected between the husband and wife before effecting divorce.
(2) If it appears that it may take a long time to effect partition, the court may effect divorce between the husband and wife and order the husband to provide the wife with monthly expenses as alimony according to the property and income of the husband until the partition is effected .
(3) The husband shall not be compelled to provide partition share or alimony to the wife if the petition has been filed on grounds other than wife living separately from husband for three years or more without the consent of the husband.
(f) Decision of divorce from the Court:
If the Court fails to make conciliation between the husband and wife and deems it appropriate to dissolve the relationship of husband and wife, the Court shall effect divorce between them.
(g) Certificate of Divorce:
The divorce concluded by the decision of the Court or deed of compromise between the parties, must be informed to ward office where the marriage has been registered. The concerned ward office shall maintain the record of divorce and provide the certificate of divorce to either party. In case the party is unable to do so, the authorized power of attorney can inform and get the divorce certificate from the concerned ward office on behalf of the party.
4) Conditions where husband is not compelled to provide partition share or alimony to the wife:
The husband shall not be compelled to provide partition share or alimony to the wife under following conditions:
(a) If the wife deprives the husband of maintenance costs or expels him from the house;
(b) If the wife commits an act or conspiracy likely to cause the grievous hurt or other severe physical or mental pain to the husband; or
(c) If the wife is proved to have made sexual relation with another person.
5) Condition where wife can get lump sum amount or alimony instead of property:
If the wife who effects divorce desires to obtain a lump sum amount or annual or monthly alimony or expense, instead of the partition share from the husband, the Court may order the husband to provide such a wife with a lump sum amount or annual or monthly alimony or expense on the basis of his property or income.
Provided that if such a wife concludes another marriage, it is not required to provide such amount or alimony.
6) Conditions where child or previous husband can obtain the property:
On the death of a divorcee woman, her son, daughter, if any, shall be entitled to her property, and if not, the previous husband shall obtain the property received by her from such a husband, and the successor on her mother’s side shall obtain property which was not received from husband.
7) The portion of the property that a wife is entitled to from the husband:
(a) Wife shall get equal entitlement to partition share on the property of husband. For the purposes of apportionment of property in common, the husband, wife, father, mother, son and daughter shall be deemed to be coparceners. If a property in common is registered in the name of both husband and wife or either of them, then such property shall be partitioned between them according to law, prior to effecting divorce.
(b) Prior to effecting the divorce the property of husband shall be divided into two parts (in case of no children) and wife shall be entitled to one part of the partition. In case where the husband and wife have children from their conjugal relationship, the property shall be divided equally among all the coparceners.
(c) If the husband himself has not obtained partition from his father or other coparceners, the Court shall, by causing both the parties to disclose the coparceners, and if there are other coparceners who are entitled to partition, by inquiring such coparceners as well, cause partition to be apportioned between the husband and wife.
8) Husband to provide maintenance cost:
If the wife, who has not obtained partition from the husband for there being no property for partition, desires to receive maintenance costs from the husband and the husband has income, the Court may order the husband to provide maintenance costs to the wife according to the income of the husband.
Provided that the husband shall not be liable to provide the maintenance cost in following conditions:
(a) If such a wife concludes another marriage; or
(b) If the income of the wife is higher than that of the husband.
9) Conditions where husband or wife living abroad can file for divorce without being present in Nepal:
For the purpose of filing a divorce without being present in Nepal, the husband or wife has to provide an authorized power of attorney verified and authenticated from concerned embassy of Nepal in that country. The authorized power of attorney can proceed with the divorce process on his/her behalf.
10) Documents required for Divorce:
The following documents are required for filing divorce in Nepal:
- Marriage certificate (if not available then other proof of marriage);
- Copy of citizenship certificate;
- Passport sized photograph of applicant;
- Evidence to prove the claim (if any);
- Copy of birth certificate of children (if any); and
- Authorized power of attorney (in case the case is to be filed through authorized power of attorney)
11) Time required for effecting divorce in Nepal:
If husband and wife have mutual consent, the Court shall effect the divorce between them immediately through deed of compromise. Provided that if the husband and wife do not agree to conciliate between them despite being convinced by the Court to that effect, the Court shall effect divorce after one year of the filing of the petition.
12) Divorce concluded abroad:
In regard to the divorce decree by the foreign Court, the decree has to be verified by the Embassy of Nepal in that country. Once the decree is verified by the embassy, it is to be translated from notary public into Nepali language and submitted to the concerned ward office, where the marriage has been registered. After that concerned Ward Office shall issue a divorce certificate.