This article will help you to know detailed information about the available reasons for divorce from husband and wife, and conditions for automatic divorce. It also deals with the divorce procedure and the steps that should be taken while getting a divorce in Nepal. It also includes partition of property after divorce, women’s rights after divorce in Nepal, and child custody after divorce.
Divorce is the legal, agreeable dissolution of a marriage through the issuance of a decree of dissolution on the petition of either party, in a way that permits the parties to remarry. Chapter Three of the Muluki Civil Code, 2074 governs the process of divorce. Available reasons for divorce from husband.
According to Section 94 of the Civil Code, 2074 divorce proceedings in Nepal can be carried out by the husband in the following circumstances:
- Desertion: if the wife deserted her husband and lived separately for a continuous period of three years or more without his consent.
- Cruelty: has committed any act, plot, or conspiracy intended to end the life of the husband, to cause him physical disability, or to cause him any other serious physical or mental suffering.
- Venereal disease: The wife is suffering from some incurable venereal disease.
- Adultery: the wife is considered to have sexual intercourse with any other man.
- Bigamy/Jari: If the wife marries another person, the relationship between husband and wife will dissolve ipso facto.
Available reasons for divorce from wife
According to Section 95 of the Civil Code, 2074 the divorce process in Nepal can be done by the wife under the following circumstances:
- Bigamy: if the husband brought or supported another wife.
- Abandonment: leaving one's wife and living separately without asking after her or caring for her for a continuous period of three years or more.
- Cruelty: carrying out any act, plot, or conspiracy to end her life, cause her physical disability, cause her any other serious physical or mental suffering, banish her from home, or fail to provide her with food and clothing.
- Impotence: if the husband has become impotent.
- Venereal disease: The husband suffers from an incurable venereal disease.
- Adultery: The husband is considered to have sexual intercourse with any other woman.
- Rape: The husband is believed to have raped the wife.
Automatic Divorce Conditions in Nepal
Divorce is not required to be followed in Nepal, but automatic divorce occurs in the following circumstances;
- If the marriage is celebrated without the full consent of the spouses, the marital relations between them will automatically end in divorce.
- If someone has contracted a punishable incestuous marriage, the marital relations between husband and wife automatically cease upon divorce and
- If the wife marries another person before the divorce.
Divorce Procedure in Nepal
Mutual Consent
The quickest, simplest, and least expensive way to divorce is by mutual consent, which takes very little time. One of the partners must file a divorce petition with the court on the first day. The spouse or person against whom the complaint is brought must appear in court on the day after the application is filed with the court. If both husband and wife agree to divorce after reading the terms and circumstances, the divorce can be finalized on the same day. As a result, the divorce procedure is finished in just two days.
By court proceedings
If the relationship between husband and wife cannot be dissolved by mutual agreement, the divorce procedure takes place through judicial proceedings. In case of judicial divorce, the court tries to reconcile the husband and wife and then grants the couple a period of one year. During this one-year period, a husband and wife can try to reconcile, reach an agreement, and give their marriage another chance. If reconciliation is not achieved, the subsequent divorce procedure is carried out in court.
The Procedure of Divorce in Court
1. Locus Standi and limitation of Time must be taken into consideration
Locus standi means the right to sue under the law. According to the law of locus standi, only those who have been harmed and affected have the right to go to court. The right to sue in a divorce case does not apply to anyone other than your spouse. This means that only one of the spouses, the husband or the wife, has the right to sue. However, that spouse must have the cause or legal basis for the divorce. The spouse must be the one who suffers, in which case only the spouse can sue the court with the right to sue. If that person is unable to bring the case, your heir or authorized representative can file on your behalf. Likewise, the deadline means that the person who has to file a complaint must be able to file a complaint within the period prescribed by law. In case of divorce, the deadline is only 3 months.
2. Jurisdiction
The complaint or notice of complaint will be filed in the district that has jurisdiction, so jurisdiction is the right of a court to hear a case, proceed with a case, decide a case, and dismiss a case. The appropriate district court has jurisdiction to hear cases in the area where the plaintiff or defendant resides. Therefore, the divorce case can be registered in the district court of the place where the spouse has the permanent domicile. However, cases can also be filed in the district court where the spouse has temporary residence. To register an application for divorce in a district court where the spouse has a temporary residence, a letter of recommendation is required. This letter of recommendation can be obtained from the municipal office of the municipality in question. For example, if the permanent address of the husband and wife is not Kathmandu, then they have to get a letter of recommendation from the concerned Kathmandu district office which can prove that Kathmandu is their temporary address. After receiving the letter of recommendation, the spouses must file a petition with the competent district court indicating the reason for the divorce.
3. Required Documents
- Citizenship certificate
- 2 Recent passport size photos
- If resided temporarily the recommendation of the concerned local bodies
- Details of the property if the property is to be claimed
- The lawsuit in accordance with the law
- If the heir has been appointed the original paper of the power of attorney
- Court fee
Steps
1. Apply for divorce
Either husband or wife can file a petition in the court for divorce.
2. Providing notice to the opposing spouse
Once the plaintiff files the petition, the court gives the defendant 21 days to answer the notice. If he or she fails, the time limit may be increased by 21 days.
Ways of sending the notice to the opposing spouse.
- The plaintiff or the spouse requesting the divorce may serve the summons on the opposing spouse.
- The lawyer representing the plaintiff can sue the opposing spouse.
- The court itself can send the summons to the opposing spouse.
- The invitation can be sent through email.
- The invitation can be sent through a national newspaper.
3. Reply to Petition
The opposing spouse must defend himself before the judge by rejecting or accepting the request. This is called a response letter. When the defendant files the reply it is possible, if necessary, to also propose the counterclaim. In a divorce proceeding in Nepal, the respondent or the opposing spouse can refuse or agree to divorce the spouse. Or the opposing spouse may or may not claim an interest in the property. It is up to the opposing spouse to choose how they want to respond in court.
4. Determination of evidence
In the next divorce proceedings, the court will carry out the subsequent divorce of his or her version of the evidence. The court will also order the accused to present his version of the evidence to the court. The court will also order to disclose of all property owned by the applicant. The court will order the defendant to submit his property claim. The court will also order both spouses to produce any other person who may have an interest in the property. The court will then review all evidence presented to the court.
5. Temporary Orders
In the next stage of the divorce proceeding, the court may issue temporary orders regarding child custody, as requested by the party. The interested party must request it. When the wife files for divorce, she may not have the financial ability to raise and provide for the child. The husband may refuse to pay maintenance to his family or his wife. In this case, the wife must ask the court for payment of maintenance costs. The court will then temporarily order the husband to pay his wife's maintenance costs on a monthly basis based on his income.
6. Reconciliation to be made between husband and wife
In the next stage of the divorce proceedings, In the event of divorce, every effort must be made to reconcile the husband and wife. If there is no possibility of conciliation, the divorce case is considered eligible to be resolved after one year from the appearance of the defendant.
7. Demand for property and income source details
If there is no possibility of conciliation, the court will order both spouses to submit before the court the details of their assets their income, and source of income. The court will then look at the assets and income of both spouses and determine how much should be awarded to the wife for support. This ensures that the wife and children are well taken care of after the divorce. They should not hide any details If after investigating the court finds that a particular party has hidden information about the details of his property. The hidden assets are also handed over to the other spouse.
8. Final Orders
The next step in the divorce proceedings in court is when the court will make the decision to dissolve the marital relationship. The court will also check that the assets have been distributed equally between husband and wife. If one of the spouses is not satisfied with the court's decision, he or she can appeal to the higher court.
9. Decision Implementation
This is the final stage of divorce proceedings in Nepal. Once the relationship is terminated by a court decision, an application for enforcement of the decision must be made. In this case, executing the decision means checking whether or not the assets have been divided according to the court order. Both husband and wife can file a petition for divorce. Divorce can be done by two processes but the way of mutual consent is the fastest and the reliable one.
Partition before divorce in Nepal
It has been provided by law that the court shall award the property in partition to the wife before granting divorce if requested in conditions where divorce is possible for reasons of the husband.
If the joint property is in the name of the spouse or the wife or the husband, such property must be divided between them according to the law before the divorce is pronounced.
If the husband has not yet acquired the property in the partition from his father or other coparceNers, the court will ask for the details of the property in the partition and provide the property to both the husband and wife in the partition.
Women's rights after divorce in Nepal
- Right to remarry: The law has guaranteed the right to remarry to any divorced woman.
- Right to change surname: The law guaranteed a woman's right to use her own surname by removing her husband's surname after divorce.
- Right to use property in the division according to her wishes: The law guarantees the right of the divorced woman to use the property acquired in the division of her husband as she wishes and does not need to return it to her ex-husband. In the case of the death of a divorced woman who has no children, the husband regains the property. If the woman owns other assets, her family members and wife are obliged to own them.
Custody of Child After Divorce in Nepal
- According to Subsection 1(a) of Section- 115 Civil Code, 2074: If the child is minor and below the age of 5 years, and if the mother remarries, she still has the right to keep her child with her if she wishes.
- According to subsection 1(b) and (c) of Section-115 of Civil Code, 2074: If the child is over five years old, they will usually stay with their mother unless she gets married again. In that case, she can choose to have custody of the child. If not, the child will stay with the father.
- According to Section-118 of the Civil Code, 2074: Even if the relationship between husband and wife is severed, the responsibility of father and mother toward their children remains the same.
- According to Subsection 2 of Section-115 of Civil Code, 2074: If the husband and wife agree on who should have custody of the child when they get divorced, the court can accept that agreement.
- According to Section-117 of the Civil Code 2074: It grants the non-custodial parent the right to visit their child to ensure they are being raised properly. So, if the child lives with the mother, the father can visit, and if the child lives with the father, the mother can visit.
Frequently Asked Questions:
1. Can a husband or wife file for divorce in Nepal?
Yes, both husband and wife can file for divorce under the circumstances mentioned in Civil Code 2074.
2. What is the fastest way to get divorced in Nepal?
Divorce by mutual consent between husband and wife is the quickest way to get a divorce.
3. Can divorce proceedings be initiated in the absence of the husband or wife in Nepal?
If the husband or wife is abroad or elsewhere, the divorce procedure can be carried out according to the laws in force.
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