Divorce in Nepal: A Legal Guide

Divorce is the legal termination of a marital relationship between two spouses. It is a complex and sensitive issue that affects the personal and social lives of the parties involved. In Nepal, divorce is governed by the Civil Code 2017, which provides the grounds, procedures, and consequences of divorce. This article will explain the main aspects of divorce law in Nepal, such as the types of divorce, the eligibility criteria, the required documents, the court process, the custody of children, the division of property, and the maintenance and alimony.

Types of Divorce

According to the Civil Code 2017, there are two types of divorce in Nepal: divorce by mutual consent and divorce by court order.

Divorce by Mutual Consent

Divorce by mutual consent is the easiest and fastest way to end a marriage in Nepal. It is based on the agreement of both spouses to dissolve their marriage without any fault or blame. The spouses can file a joint petition to the concerned district court with their consent and other relevant documents. The court will verify the documents and approve the divorce within two working days. The spouses can also decide on the custody of children, the division of property, and the maintenance and alimony by themselves.

The advantages of divorce by mutual consent are:

• It saves time and money, as there is no need for a long and expensive court process.
• It reduces stress and conflict, as there is no need to prove any fault or wrongdoing of either spouse.
• It protects the dignity and privacy of both spouses, as there is no need to disclose any personal or intimate details in public.
• It promotes harmony and cooperation, as both spouses can maintain a cordial relationship after divorce.

The disadvantages of divorce by mutual consent are:

• It requires the consent of both spouses, which may not be possible in some cases where one spouse is unwilling or unavailable.
• It may not protect the rights and interests of either spouse, especially if one spouse is more dominant or influential than the other.
• It may not address the underlying issues or causes of marital breakdown, such as domestic violence, infidelity, addiction, etc.

Divorce by Court Order

Divorce by court order is the alternative way to end a marriage in Nepal. It is based on the fault or wrongdoing of one spouse that makes it impossible or intolerable for the other spouse to continue the marriage. The aggrieved spouse can file a petition to the concerned district court with evidence and witnesses to prove the fault or wrongdoing of the other spouse. The court will issue a notice to the other spouse to submit a written reply within 15 days. The court will then conduct a hearing and try to mediate between the spouses. If mediation fails, the court will decide on the divorce based on the facts and circumstances of the case.

The grounds for divorce by court order are different for husbands and wives. According to Section 94 of the Civil Code 2017, a husband can file for divorce on the following grounds:

• If the wife has been living separately for three consecutive years or more without his consent.
• If the wife has deprived him of maintenance costs or expelled him from the house.
• If the wife has committed an act or conspiracy that results in grievous hurt or other severe physical or mental pain to him.
• If the wife has been proved to have made a sexual relationship with another person.

According to Section 95 of the Civil Code 2017, a wife can file for divorce on the following grounds:

• If the husband has been living separately for three consecutive years or more without her consent.
• If the husband has deprived her of maintenance costs or expelled her from the house.
• If the husband has committed an act or conspiracy that results in grievous hurt or other severe physical or mental pain to her.
• If the husband has concluded another marriage.
• If the husband has been proved to have made a sexual relationship with another person.
• If the husband has been proved to have raped her.

The advantages of divorce by court order are:

• It allows one spouse to initiate divorce without the consent of the other spouse, which may be necessary in some cases where there is abuse, violence, adultery, etc.
• It protects the rights and interests of the aggrieved spouse, as the court will consider the fault or wrongdoing of the other spouse in deciding the custody of children, the division of property, and the maintenance and alimony.
• It addresses the underlying issues or causes of marital breakdown, such as domestic violence, infidelity, addiction, etc.

The disadvantages of divorce by court order are:

• It takes time and money, as there is a need for a long and expensive court process.
• It increases stress and conflict, as there is a need to prove the fault or wrongdoing of the other spouse with evidence and witnesses.
• It damages the dignity and privacy of both spouses, as there is a need to disclose any personal or intimate details in public.
• It worsens the harmony and cooperation, as both spouses may develop a hostile or bitter relationship after divorce.

Eligibility Criteria for Divorce

According to Section 70 of the Civil Code 2017, there are four conditions for a person to get married in Nepal:

• Both man and woman accept each other as wife and husband.

However, the law allows a marriage among the people belonging to a certain caste to get married to one’s relative if they culturally accept such practice.

These conditions also apply to divorce, meaning that only those who are legally married can get divorced. Additionally, the spouses must meet the grounds for divorce by mutual consent or by court order, as explained above.

Required Documents for Divorce

The documents required for divorce vary depending on the type of divorce. For divorce by mutual consent, the spouses need to submit the following documents to the concerned district court:

• A duly filled and signed application form in the prescribed format.
• Original and notarised copies of citizenship certificates of both spouses.
• Original and notarised copies of citizenship certificates of witnesses.
• Recommendation letters from local ward offices proving the unmarried or single status of both spouses.
• Recommendation letters from local ward offices for temporary residence if you are from the other district.
• Four copies of passport size photos of each spouse.
• A bank voucher equivalent to Rs 500 as a court fee.

For divorce by court order, the petitioner (the spouse who files for divorce) needs to submit the following documents to the concerned district court:

• A duly filled and signed petition form in the prescribed format.
• Original and notarised copies of citizenship certificates of both spouses.
• Original and notarised copies of citizenship certificates of witnesses.
• Recommendation letters from local ward offices proving the unmarried or single status of both spouses.
• Recommendation letters from local ward offices for temporary residence if you are from the other district.
• Four copies of passport size photos of each spouse.
• A bank voucher equivalent to Rs 500 as a court fee.
• Any evidence or documents to prove the fault or wrongdoing of the respondent (the spouse who is sued for divorce).

For any foreign citizen willing to conduct a divorce in Nepal, the following documents shall be present, in addition:

• A no objection letter from their respective embassy or consulate to get divorced in Nepal. This letter shall be translated in Nepali and notarised by a notary public.
• The law relating to marriage in their concerned country. This law shall be translated in Nepali and notarised by a notary public.

Court Process for Divorce

The court process for divorce depends on the type of divorce. For divorce by mutual consent, the court process is simple and quick. The spouses need to file a joint petition with their consent and other relevant documents to the concerned district court. The court will verify the documents and approve the divorce within two working days. The court will also issue a divorce certificate to both spouses.

For divorce by court order, the court process is complex and lengthy. The petitioner needs to file a petition with evidence and witnesses to prove the fault or wrongdoing of the respondent to the concerned district court. The court will issue a notice to the respondent to submit a written reply within 35 days. The court will then conduct a hearing and try to mediate between the spouses. If mediation fails, the court will decide on the divorce based on the facts and circumstances of the case. The court will also decide on the custody of children, the division of property, and the maintenance and alimony. The court will issue a divorce certificate to both spouses after the final verdict.

Custody of Children after Divorce

Custody of children after divorce in Nepal is a legal issue that involves the rights and responsibilities of parents to care for their children after they end their marriage. According to the Muluki Civil Code 2074, which is the main law governing family matters in Nepal, the custody of children depends on various factors, such as the age of the children, the wishes of the parents and the children, the financial and mental status of the parents, and the best interests of the children. The court has the final authority to decide who gets custody of the children and under what conditions.

According to the law, if the child is below five years old, the mother has the right to keep the child under her custody, unless she remarries or gives up her right. If the child is above five years old, but below ten years old, the mother can also keep the child under her custody, unless she remarries. If she remarries, the father can claim custody of the child. If the child is above ten years old, the court will consider the child's preference and opinion in deciding who gets custody. However, in any case, the court will also look at other factors, such as the income, health, education and moral character of both parents, and their relationship with the child.

The law also states that both parents have an obligation to provide for the maintenance, health, education and welfare of their children according to their financial capacity. The parent who does not have custody of the child has the right to visit and communicate with the child regularly. The parent who has custody of the child cannot prevent or obstruct this right, unless there is a valid reason. The court can modify or revoke its decision on custody if there is a change in circumstances or if it finds that the custodial parent is not fulfilling his or her duties properly.

The court has the authority to decide the custody of children after divorce based on these factors. The court can grant the custody of children to either parent, or to both parents jointly, or to any other person who is suitable and willing to take care of the child. The court can also modify or revoke the custody order if there is a change in circumstances that affects the best interest of the child.

The parent who does not have the custody of the child has the right to visit and communicate with the child, unless the court restricts or prohibits such right for the welfare of the child. The parent who has the custody of the child has the duty to inform and consult with the other parent about the important matters concerning the child, such as education, health, religion, etc.

Division of Property after Divorce

The division of property after divorce is another important and complicated issue that affects both spouses. The property of spouses refers to any movable or immovable assets that they own individually or jointly, such as land, house, car, bank account, jewelry, etc.

According to Section 101 of the Civil Code 2017, the division of property after divorce is decided by the following rules:

• The property that each spouse owned before marriage or acquired after marriage by inheritance, donation, or will shall remain their separate property and shall not be divided.
• The property that each spouse acquired after marriage by their own income, effort, or skill shall be their separate property but shall be subject to division.
• The property that both spouses acquired jointly after marriage by their joint income, effort, or skill shall be their joint property and shall be subject to division.
• The property that either spouse acquired after marriage by using or investing their separate property shall be their separate property but shall be subject to division.

The court has the authority to decide the division of property after divorce based on these rules. The court can divide the property equally or unequally between the spouses, depending on the facts and circumstances of the case. The court can also consider the fault or wrongdoing of either spouse in deciding the division of property.

The factors that the court may consider in dividing the property are:

• The duration of marriage
• The contribution of each spouse in acquiring, preserving, or increasing the value of the property
• The income, earning capacity, and financial needs of each spouse
• The age, health, and living standard of each spouse
• The custody and maintenance of children
• The conduct and behavior of each spouse during marriage
• Any other factor that is relevant and fair

Maintenance and Alimony after Divorce

The maintenance and alimony after divorce is another important and sensitive issue that affects both spouses. The maintenance and alimony refers to the financial support that one spouse pays to another spouse for their living expenses after divorce.

According to Section 103 of the Civil Code 2017, the maintenance and alimony after divorce is decided by the following principles:

• The spouse who is unable to maintain themselves due to old age, illness, disability, unemployment, or any other reason shall be entitled to receive maintenance from the other spouse who is able to pay.
• The amount and duration of maintenance shall be determined by the court based on the income, earning capacity, and financial needs of both spouses, and the best interest of children, if any.
• The maintenance shall be paid monthly, unless otherwise agreed by both spouses or ordered by the court.
• The maintenance shall be terminated if the recipient spouse remarries, or dies, or becomes self-sufficient, or if there is a change in circumstances that affects their need or eligibility for maintenance.
• The spouse who is at fault or wrongdoing for causing divorce shall not be entitled to receive alimony from the other spouse who is innocent.
• The amount and duration of alimony shall be determined by the court based on the income, earning capacity, and financial needs of both spouses, and the conduct and behavior of each spouse during marriage.
• The alimony shall be paid in lump sum or installments, as agreed by both spouses or ordered by the court.
• The alimony shall be terminated if the recipient spouse remarries, or dies, or if there is a change in circumstances that affects their need or eligibility for alimony.

Conclusion

Divorce is a legal process that ends a marital relationship between two spouses. It is a complex and sensitive issue that involves many legal aspects, such as the types of divorce, the eligibility criteria, the required documents, the court process, the custody of children, the division of property, and the maintenance and alimony. It is advisable to consult a lawyer before filing for divorce, as they can help you understand your rights and obligations, and guide you through the legal formalities and procedures. If you are looking for a divorce lawyer, you can contact us today and we will assist you with your divorce case. We have experienced lawyers who can help you with all the legal aspects of divorce.