This article helps you to learn about the divorce process in Nepal, the required documents and the legal complexities.
Introduction
The legal procedure through which a husband and woman terminate their marriage is called a divorce. The Muluki Civil Code of 2017 governs the divorce process in Nepal. The Civil Code states that either a husband or a woman may file for divorce, making it an equality-based measure.
The filing of a petition, a mandatory mediation process aiming at reconciliation, and the court’s ultimate rulings are all essential phases in Nepal’s divorce process. Each of these procedures guarantees that both parties have a fair chance to submit their case and that the divorce decision is made with consideration. The all-encompassing legal framework is intended to address the psychological and monetary challenges that frequently follow a divorce, to protect the rights and best interests of the husband and wife and their children.
Types of Divorce
There are two main types of divorce in Nepal:
Mutual Consent Divorce: Both spouses agree to end the marriage. This type of divorce is typically quicker and involves less conflict.
Non-consent Divorce: One spouse wants a divorce, but the other does not. This type of divorce can be more complex and requires legal grounds for the divorce.
Condition when Husband can File for Divorce Process in Nepal
A husband can file for divorce under the following conditions:
- The wife has lived separately for three or more consecutive years without the husband’s consent.
- The wife deprives the husband of maintenance costs or expels him from the house.
- The wife commits acts or conspiracies causing severe physical or mental pain to the husband.
- The wife is proven to have engaged in sexual relations with another person.
Condition when Wife can File for Divorce in Nepal
A wife can file for divorce under the following conditions:
- The husband has been living separately for three or more consecutive years without the wife’s consent.
- The husband deprives the wife of maintenance costs or expels her from the house.
- The husband commits acts or conspiracies causing severe physical or mental pain to the wife.
- The husband marries another woman.
- The husband is proven to have engaged in sexual relations with another woman or has raped the wife.
Documents Required for Divorce Process in Nepal
The following documents are required for a divorce application in Nepal:
- Marriage certificate (or any other proof of marriage)
- Citizenship certificate
- Passport-sized photograph of the applicant
- Evidence to support the claims made in the petition (if any)
Divorce Process in Nepal – Step-by-Step Court Process
The divorce process in Nepal involves several steps:
Step 1: Petition to be Filed for Divorce Either spouse can file a divorce petition in the concerned District Court.
Step 2: Notice Given to the Other Party The court sends a notice of the petition to the other party through court officials.
Step 3: Reply and Defense by the Other Party The receiving party must file a reply to the petition within a stipulated time.
Step 4: Mediation Between Husband and Wife The court will try to mediate between the spouses to resolve their differences.
Step 5: Partition of Property If mediation fails, the court will proceed with the partition of property.
Step 6: Final Decision of Divorce by the Court If reconciliation is not possible, the court will issue a final decision granting the divorce.
Property Division in Divorce
In cases where the divorce is initiated due to the husband’s actions, the court in Nepal is responsible for partitioning the property between the husband and wife before granting the divorce, provided the wife requests it.
However, if it becomes apparent that the partition process might be prolonged, the court has the discretion to grant the divorce first and mandate that the husband provide the wife with monthly expenses as alimony until the partition is finalized.
This approach ensures that the wife is financially supported during the interim period, safeguarding her well-being while the property division is being resolved.
Child Custody in Divorce
In cases involving children, the court in Nepal determines custody based on the best interests of the child, also deciding on visitation rights and child support to ensure the child’s needs are met.
Physical custody implies that a parent has the right and responsibility to care for the child daily and have the child live with them. According to Subsection 1(a) of Section 115 of the Civil Code 2074, if the child is a minor under five years old and the mother remarries, she retains the right to keep the child with her if she wishes.
For children over five, Subsections 1(b) and (c) state that they typically stay with the mother unless she remarries, at which point she can choose custody; otherwise, the child stays with the father.
Legal custody means both parents share equal responsibility in making significant decisions for the child’s betterment, as outlined in Section 118.
Joint custody allows both parents equal rights to access the child’s medical and educational records, per Subsection 2 of Section 115. Visitation rights are granted to ensure the non-custodial parent can visit the child, as per Section 117.
After divorce, the custody process begins with filing a case in the district court. If a child under five lives with a remarried mother who denies the father visitation, he can seek sole custody through the court. Similarly, if a mother denies visitation for an older child, the father can seek legal intervention. Habeas corpus proceedings can be initiated to resolve custody disputes, especially in cases of unlawful detention.
Alimony in Divorce
In Nepal, alimony can be requested by the wife as a lump sum or every month instead of a partition share. The court determines the alimony amount based on the husband’s property and income. Upon remarriage, the wife loses entitlement to alimony.
Alimony is also provided for children until they reach the age of majority or complete higher education. The process involves the court evaluating the husband’s assets, including property in the names of the husband, mother-in-law, and father-in-law, as per Section 100 of the Civil Code 2074. There are different forms of alimony: lump-sum (a one-time payment), interim (monthly payments during the divorce process), and regular monthly or annual payments post-divorce.
The court considers several factors when determining alimony, such as ancestral property, the husband’s share in it, his bank balance, monthly or yearly earnings, and any outstanding loans. These evaluations ensure fair financial support for the wife and children.
Is Online Divorce Available in Nepal?
Online divorce is not currently available in Nepal. All divorce proceedings must be conducted in person or through legal representation in the court.
Divorce from Abroad in Nepal through Power of Attorney
Spouses living abroad can file for divorce in Nepal without being physically present by using a power of attorney. This power of attorney must be verified and authenticated by the concerned Nepalese embassy.
A divorce lawyer in Nepal is required to manage these procedures. If one spouse resides in Nepal while the other is abroad, the spouse living abroad must send the authenticated power of attorney through the embassy and designate a representative to handle the divorce proceedings in Nepal.
The spouse in Nepal is required to attend all court hearings in person. This process ensures that both parties’ interests are represented and that legal formalities are properly observed.
Can We Marry Another Person Right After Divorce?
Once the court grants a divorce, the marriage registration certificate is canceled, and the spouses are legally free to remarry. However, it is advisable to ensure all legal formalities are completed before entering a new marriage.
Also Read: Court Marriage Process in Nepal
Conclusion – Divorce Process in Nepal
In conclusion, Nepal’s divorce procedure is regulated by the 2017 Civil Code, which offers a thorough framework for ending marriages while safeguarding the rights and interests of both parties. The process entails several procedures, including mediation, property division, and custody decisions, all of which are intended to resolve the intricate emotional and financial concerns involved, whether with mutual accord or not.
Alimony provisions ensure fair financial support and specific procedures allow for divorce filings from abroad. Although online divorce is not available, the comprehensive legal system ensures that all aspects of divorce are meticulously handled, allowing individuals to move forward with their lives once all formalities are completed.
