Divorce is the formal process or means of dissolving or terminating marital relations between husband and wife. The legal duties and responsibilities of marriage are dissolved under certain rules as defined under the law of the particular country. Under the mutual understanding of husband and wife, if they conclude to separate with their desire then they can terminate their marital relationship through the process of divorce. As stated under Civil Code 2074, the matter of divorce is dealt with by the governing law.
The procedure of divorce has been defined in two ways: divorce under mutual consent and divorce procedure by court order (without the consent of the respective spouse).
The law related to divorce in Nepal is defined in the National Code chapter on the divorce of the Civil Code 2018 – sections 94 to 104.
The application for divorce is first filed in the relevant District Court. Any desiring party can file a case of divorce under the circumstances as defined in the Civil Code. A divorce might take anything from 3 days to 12 months, depending on the court's ruling. It does not take any longer if both parties agree to the mutual consent.
If any of the husband and wife do not agree to reconcile despite the court's reminders and persuasions, the court will grant a divorce one year after the petition is filed.
Documents required for filing divorce application:
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Marriage certificate of the spouse (if not available then any other proof of marriage including photo, video, etc)
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Copy of citizenship certificate
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Passport-sized photograph of the applicant and
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Evidence that can prove the claim (if any).
Divorce under mutual consent
The fastest and easiest way of divorce is the mutual consent of the husband and wife. the major consideration is maintenance, alimony and the custody of a child. There is no limitation of maintenance defined in the law, maybe in some figure or zero. the case of child custody can be shared or joint or depending upon the understanding of parents to the divorce.
Divorce without mutual consent
Divorce without mutual consent in which only one party agrees to the separation, not the other one. There are some grounds for filing petitions of divorce for men and women. Either husband or wife can initiate the divorce proceeding without the approval of the other spouse under the following circumstances:
For Husband
The husband can initiate a case of divorce if the following circumstance provided in section 94 of the civil code is fulfilled.
(a) Except where the husband and wife are living separately after obtaining their partition share or separating bread and board by the 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 of the maintenance costs or expels him from the house;
(c) If the wife commits an act or conspires to cause serious harm or other severe physical or mental pain to the husband; or
(d) If the wife is proven to have made sexual relations with another person.
For wife
Likewise, a wife can file a case if the following circumstance is fulfilled as defined in section 95 of the civil code.
(a) Except where the husband and wife are living separately after obtaining their partition share or separating by law if the husband is living separately for three or more years without the consent of the wife;
(b) If the husband deprives the wife of 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 proven to have had sexual intercourse with another woman; or
(f) If the husband is proven to have raped the wife.
The procedure of Divorce
a) Petition to be filed for divorce.
The husband or wife, desiring to get a divorce needs to file a petition in the concerned District Court through a competent lawyer.
b) Notice should be given to the other party.
The Court gives notice of the petition to inform another party about the divorce procedure filed against the spouse through officials of the court.
c) Reply from the other party.
After getting notice of the petition, the receiving party must file a reply to the petition in the Court within the stipulated time as they wish to contest the divorce either accepting or rejecting the points of the petition.
d) Mediation between husband and wife.
If a divorce petition is filed, the Court will remind, persuade, and conciliate both parties to resolve the disagreement to the best of its ability. Evidence and witnesses are presented in court, as well as the court's reaction.
e) Partition of a property before divorce.
(1) If the husband is the reason for divorce, the Court can cause partition on the request of the wife to be effected between the husband and wife before finalizing the divorce.
(2) If it appears that it may take a long time to grant divorce and effect partition, the Court may order the husband to provide the wife with monthly expenses as alimony depending on the property and income of the husband until the partition is completed.
f) Decision of divorce from the Court.
If the Court fails to agree with the husband and wife even after reminding and convincing them and deems it appropriate to get the relationship to end rather than to continue it any longer, the Court will divorce them.
g) Cancelling the marriage registration certificate.
. The interim orders related to child custody, alimony, maintenance, and meditation are passed by the court. The court announces the final order of dissolving the marriage registration certificate must be canceled from the concerned Ward Office.
Custody of child after divorce
The legal parent of the child is characterized and the authority of the child and responsibility to care for the child is decided under the conditions:
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The interest of the child
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Financial circumstances of parents
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Age of the child
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As per the preference of the child
In the case of a person in a foreign
A husband or wife living abroad is also eligible for divorce in Nepal without being present in person. A valid power of attorney needs to be verified and authenticated by the concerned embassy of Nepal in that country.
Alimony and the conditions
Conditions where the husband is not compelled to provide partition share or alimony to the wife:
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If the woman refuses to pay the husband's maintenance or kicks him out of the house,
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If the woman conspires to inflict the husband substantial bodily harm or other severe physical or mental distress; or
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If it is proven that the wife had a sexual relationship with another person.
If the wife desires to receive a lump sum or annual or monthly alimony then the court orders the husband to provide such lump sum depending upon the income of the husband. But if a wife gets married to another then-husband or the income of the wife is higher than that of the husband then-husband is not payable of such maintenance cost.
If a divorced woman dies then the property is entitled to the child. If they have no child then the property is obtained by the husband or the successor on her mother's side.
Property entitled from the husband
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The wife gets the equal partition share on the property of the husband.
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If they have common registered property then the property is partitioned according to the law.
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If the husband has not obtained partition from his parent then the court can cause partition including all the coparceners as well.
