A divorce is among the most traumatic occurrences for any couple. To add to this, it can also be a long-winded and costly affair in Nepal if the divorce is contested. Even couples that have mutually agree to the divorce, however, must prove that they have been separated for three consecutive years before the courts consider their plea.
Types of divorce petition
A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
Divorce with Mutual Consent
Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. Important requirement is the mutual consent of the husband & wife. There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law, there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.
The duration of a divorce by mutual consent varies from three days to 12 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner than later.
Divorce without Mutual consent: In case of a contested divorce, There are specific ground on which the petition can be made.
A) Conditions under which a husband can get a divorce (National Code Civil Code 2018) section 94
- Unless legally separated, if his wife stays separate from him for more than three years without his permission.
- If his wife does not allow him to subsist or throws him out of their home.
- If his wife plans, or acts, to inflict physical or mental suffering on him, to take his life, or physically injure him.
- If his wife has a sexual relationship with someone other than him.
B) Conditions under which a wife can get a divorce: (National Code Civil Code 2018) section 95
- Unless legally separated, if her husband stays separate from her for more than three years without her permission.
- If her husband does not allow her to subsist or throws her out of their home.
- If her husband plans, or acts, to inflict physical or mental suffering on her, to take her life, or physically injure her.
- If her husband gets married to another woman.
- If her husband has a sexual relationship with someone other than her.
- If it is proven that her husband has raped her, as defined by rape laws.
GROUNDS FOR DIVORCE
- Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery.
- Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb, and health. The intangible acts of cruelty through mental torture are not judged upon one single act but a series of incidents.
- Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of three years, the abandoned spouse can file a divorce case on the ground of desertion.
- Conversion – In case, either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
- Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore it cannot be expected from the couple to stay together.
- Leprosy – In the case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
- Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse.
- Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
- Not Heard Alive – If a person is not 1seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
- No mediation– It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
STEP BY STEP PROCEDURE TO FILE FOR DIVORCE
The Step by Step procedure for divorce is given as follows:
Step 1: Filing Petition
The first step of the divorce procedure is to file for a Divorce Petition in the concerned District Court through a competent lawyer. Any of the partners which is aggrieved can approach the court and file for Divorce Petition in the appropriate jurisdiction on any of the grounds mentioned above. The same can be done with the help of a divorce lawyer.
Step 2: Service of Summons
The next step after filing the Divorce Petition is the service of summons on the contesting parties to inform them that a divorce procedure has begun against them by the aggrieved spouse. The party who is served the summon has to appear before the Judge of the District Court. Step
3: Response to Petition
The next step in the procedure for divorce is filing a response to the Divorce Petition. This is done by the party that wishes to contest the divorce on the grounds that they wish to contest on, accepting or rejecting the points raised in the petition.
Step 4: Trial
Once both the parties have presented their points through the petition and the response, the trial begins where the court hears both the parties with their evidence and witnesses.
Step 5: Temporary Orders
The next step of the procedure to file a divorce is the interim orders which are passed by the court related to child custody, alimony, maintenance and mediation between two parties, etc.
Step 6: Final Order
The final step is where the court pronounces the final order dissolving the marriage after which the District Court proceedings will come to an end.