Divorce Process in Nepal (2079/2080)

This article will help you to know detailed information about the divorce process in Nepal.

Divorce means the formal, voluntary ending of a marriage by the granting of a decree of dissolution of that marriage on the petition of either party thereto, in a manner that allows the parties to remarry.

The divorce process in Nepal is governed by Muluki Civil Code 2074.

Grounds Available to Divorce for Husband

The divorce process in Nepal can be carried out by the husband under the following circumstances:

• Desertion: If a wife has left her husband and lived separately for a continuous period of three years or more without his consent, or
• Cruelty: she has carried out any such act or intrigue or conspiracy as is designed to put an end to the husband’s life, lead to his physical disability or result in any other severe physical or mental suffering to him, or
• Venereal Disease: the wife suffers from any incurable venereal disease or
• Adultery: the wife is held to have sexual intercourse with any other man,
• Bigamy/Jari: If the wife concludes marriage with another person, the relation of such husband and wife shall ipso facto be dissolved.

Grounds Available to Divorce for Wife

The divorce process in Nepal can be carried out by the wife under the following circumstances:

• Bigamy: If a husband has brought or kept another wife or
• Desertion: left the wife and lived separately without seeking any news of her and without taking care of her for a continuous period of three years or more or
• Cruelty: carried out any such act or intrigue or conspiracy designed to put an end to her life, lead to her physical disability or result in any other severe physical or mental suffering to her or banished her from the house, or not provided her with food and clothes
• Impotency: if the husband has become impotent, or
• Venereal Disease: the husband suffers from an incurable venereal disease or
• Adultery: the husband is held to have sexual intercourse with any other woman or
• Rape: the husband is held to have raped the wife.

Conditions of Automatic Divorce

There is no requirement to follow divorce in Nepal but automatic divorce takes place under the following circumstances ;

• If the marriage was performed without the full consent of the husband and the wife, the marital relations between them shall automatically end up in divorce
• If any individual has performed incestuous marriage subject to punishment, the marital relations between the husband and the wife automatically end up in divorce and
• If the wife marriages another person before the divorce.

Partition Before Divorce

The legal provision has been made for the Court to provide property in the partition to the wife before granting divorce if it is demanded in conditions where divorce is possible by the reason of the husband.

If the joint property is in the name of the husband and wife or in the name of either the husband or wife, such property should be partitioned between them according to the law before granting a divorce.

If the property is yet to be acquired in the partition by the husband from his father or other coparceners, the court shall ask for the details of the property in the partition and provide property to both husband and wife in the partition.

The divorce process in Nepal can be carried out in the following steps

1. Petition to be filed: The husband or wife who wishes to get the relationship divorced shall file a petition in court.
2. Notice: Notice should be given to another party through the court about the petition.
3. Reply: Another party must file a reply petition in court at a specific time.
4. Trial: Once both the parties have presented their points and opinions through the petition and the reply, the trial begins where the court hears both the parties with their evidence and facts.
5. Mediation to be made between husband and wife: If a petition is filed for divorce, the court shall, to the extent possible, remind and convince both the parties and conciliate them.
6. Temporary Orders: In the next step of the divorce procedure, the court can issue the temporary orders relating to child custody, alimony, and maintenance as required by the party
7. Divorce to be effected: If the court fails to make conciliation between the husband and wife even after reminding and convincing them and finds it appropriate to get the relationship divorced rather than to continue it any longer, the court shall effect divorce between them.
8. Partition of property to be effected before divorce: If divorce is to be affected because of the husband, the court shall, if the wife so demands, cause the partition to be effected between the husband and wife before effecting divorce.
   If the partition can not bring into effect instantly then the wife should be provided with the monthly expenses and income of the husband until the partition comes into effect.
9. Cancellation of Marriage Certificate: Registration of marriage certificate must be canceled from the ward office after divorce.

The Rights of Women after Divorce

• Right to Remarriage: The law has secured the right of remarriage to any divorced woman.
• Right to Change the Surnames: The law has secured the right of the woman to use her surname of the family by removing the surname of the family of the husband after divorce.
• Right to Use the Property in Partition According to Her Wishes: The law has secured the right of the divorced woman to use the property acquired in partition from the husband as she wishes and she need not return it to the former husband. In case of the death of the divorced woman who has no children, the husband again acquires the property. If the woman has some other property, the members of the family and the wife are liable to get it.

Guardianship of Child After Divorce

After the lawful divorce process in Nepal is completed, a minor born from them will remain under the custody of the father or mother under the following circumstances:

• In the case of a minor who has not attained five years of age, under the custody of the mother, if she so wishes no matter whether she has concluded another marriage,
• In the case of a minor above five years of age, except where the mother has concluded another marriage, under the custody of the mother, if she so desires,
• In circumstances other than that referred to in clause (a) or (b), under the custody of the father.

If there is an agreement between husband and wife about the custody of a minor during divorce then custody according to the agreement.

If the minor is above 10 years then the opinion of the minor is also taken into consideration.

If the mother or father, under whose custody a minor is living, dies, the surviving father or mother shall take the minor under his or her custody without any delay.

But if the mother has already concluded another marriage, she is not obliged to take a minor above five years of age under her custody.

Documents required for the petition of Divorce

• For the divorce process in Nepal to be carried out, the following documents are required
• Certificate of citizenship,
• If residing in another place, recommendation letter of such concerned local bodies,
• 2 pp size photos,
• Details of the property and property to be claimed,
• Court fee
• Marriage Certificate
• Other evidence of marriage if there is no marriage certificate

Can either husband or wife file a petition for divorce?

Yes, either husband or wife can file a petition for divorce under the circumstances mentioned in Muluki Civil Code 2074.

Who can keep the child after divorce?

Either husband or wife can keep the child according to the provision of Muluki civil code 2074.

Can a child decide with whom they stay after divorce?

Children only above 10 years of age can share their opinions on with whom they want to stay.