Divorce Process in Nepal: New Divorce Law in Nepal (2081)

Divorce is the legal termination of a marriage by a court of law. Divorce in Nepal is governed by the National Civil Code 2017. Divorce is a serious matter, and it is important to understand your rights and options before you decide to file for divorce. If you are considering getting a divorce, you should consult with an attorney.

There are two types of divorce in Nepal, one by Mutual Consent between husband and wife and the other by the Court order.

Divorce By Mutual Consent Of Husband/Wife

In their consent, the Wife/Husband can get a divorce from the concerned District Court.

Grounds For Wife

to file a divorce claim against her husband at the District Court;

• If the husband married other women
• If he evicted from home
• If he denied daily subsistence ( khana launa nadiyema)
• If staying apart for over 3 years without consent and not sharing information with the wife
• If he committed an offense of threatening life or serious bodily harm (anga bhanga) or any other offense of serious physical and mental harm/torture or conspired in doing so
• If he becomes impotent
• If he got an incurable sex-related disease
• If declared that he had sexual orientation with other women
• If raped his own wife
• If marriage is done with deceptive information about dumbness, chronic illness, epilepsy, blindness with both eyes, impotency, handicaps with hands and legs, madness, feebleness, etc., and intended to divorce
• If marriage done due to deceptive information regarding marital status (as married, widowhood, and divorced were said as unmarried) and if intended to divorce

Grounds For Husband

to file a divorce claim against wife at the District Court;

• If staying apart for over 3 years without consent and not sharing information with the husband.
• If she committed an offense of threatening life or serious bodily harm (anga bhanga) or any other offense of serious physical and mental harm/torture or conspired in doing so.
• If he got an incurable sex-related disease.
• If she had illicit sexual relations with other male.
• If marriage is done with deceptive information about dumbness, chronic illness, epilepsy, blindness, impotency, handicaps with all hands and legs, madness, feebleness, etc., and intended to divorce.
• If marriage is done due to deceptive information regarding marital status (as married, widowhood, and divorced were said as unmarried) and if intended to divorce.

Common Grounds ( For Both/ Anyone)

• Under-age marriage - those married below 18 and have no child, if want to divorce after attending the age of 18 can sue for divorce.
• Marriage in duress - Marriage without consent of any spouse, or done in duress/force can sue for divorce.

Prima Facie Or Automatically A Divorce

If the wife marries another man that is considered automatically a divorce.

Documents Required For Divorce In Nepal

To initiate the divorce proceedings in Nepal, the following documentation is necessary:

• Certificate of Citizenship
• If residing in a different location, a letter of recommendation from the respective local authorities
• Two passport-sized photographs
• Information regarding the property and the assets being contested
• Court fees
• Marriage Certificate
• Alternatively, any additional proof of marriage in case a formal certificate is unavailable.

Divorce Procedure In Nepal

Through Judicial Committee/Petition to be filed

At the first step person seeking divorce should file an application to the ward/ Municipality concerned either in consent or on other grounds of Divorce ( as above) between the Husband/Wife. The ward and Municipality would make efforts for mediation and conciliation between Husband/Wife. Despite repeated efforts if the ward and Municipality found no alternative to divorce, they can recommend reasons for divorce to the District Court. The parties (Husband and wife) can also directly approach the Court without resorting to the procedures of the Judicial committee. Either husband or wife shall/can make a petition in the Court within three months after the date of accrual of the cause of action or knowledge of such an act or action.

Note: The Judicial Committee established at the local level only intends to reconcile the parties and holds no authority to effect Divorce.

Mediation reconciliation by the court

The Court also initially suggests for amicable discussion between the parties to settle the dispute instead of entering into court proceedings. However, if the parties cannot come to terms or the Court fails to make conciliation between the couple then the Court shall effect a divorce between them.

Partition Of Property Before Divorce

The court would ask for partition of property before divorce. For this purpose, the Court can ask to submit a statement of the partition table to the one who holds the property Until the partition procedure is over, the monthly expenses will be provided based on the estimated partition property. But if the wife demanded annual subsistence expenses in lieu of partition the court can provide such amount as well.

Property to Coparceners

If the wife re-married to another man, the amount of partition property on her hand would go to the coparceners. A wife entering into another marriage nullifies her claim over the property and the legitimate coparcener will be entitled thereof.

Provision for Annual Expenses

In the lack of partitionable property, the court would ask the husband to provide monthly or annual expenses for the wife, based on his income. The monthly or annual expenses would be available until she got remarried. The wife will get back her personal property as Daijo and Pewa. Additionally, if the wife was evicted from home and the husband got married to another woman she should be provided property through a partition procedure.

Support And Custody Of Children

Child custody is a legal responsibility that involves the authority to oversee, guide, and educate a child by the accountable parents. The parent who has custody has the legal right to make decisions about the child's life, such as where they will live, what school they will attend, and what medical care they will receive. The custodial parent also has the right to keep the child with them. Hereinafter is the situation/requirements under which Child Custody is granted.

• A child born within 272 days before divorce may be considered the child of the divorcing father. Until the age of five, a child will be taken care of as below, by divorcing parents.
• Mother is given first priority to take care of a child if she intends to take care.
• If the mother does not intend, the father is obliged to take care.
• If both agree they can take care turn by turn or as arranged.
• Non-attending parents should be given an opportunity for periodic visitation of the child.
• Even a remarried mother can make periodic visits to her child.

However, if there is a threat or danger to the life and health of children, visiting children by parents concerned can be denied

• In case the mother is taking care, the father should provide reasonable subsistence, education, medical, etc. expenses for the child.
• If a child is with the father (if he is a Nepali) and the mom’s income is more than the dad’s, the mom has to provide the amount of expenses as decided by the court.

Revocation Of Marriage Certificate

After a divorce, the marriage certificate must be revoked from the ward office. This means that the marriage will no longer be recognized by the government and the parties will be legally separated. This is necessary to ensure that the parties can remarry and to prevent any confusion about their marital status.

Guardianship In Nepal

A guardian is a person appointed by the court to take care of a person who is unable to care for themselves due to incapacity, incompetence, or quasi-competence. The guardian has a duty to protect the person's rights and interests. Guardians are often appointed by the court in cases where a person has a mental illness, developmental disability, or physical disability that prevents them from making their own decisions. Guardians can also be appointed for minors who do not have parents or who have parents who are unable to care for them.

Hierarchical Order of Guardian

The National Civil Code of Nepal 2017 has set a priority order among personnel eligible for guardianship. The order follows;

• Husband or wife living in a joint family,
• Father or mother,
• Son, daughter, or widow daughter-in-law living in a joint family,
• Separated husband or wife,
• Separated son, daughter, or widow daughter-in-law,
• Grand-father or grand-mother,
• Grand-son or grand-daughter,
• Elder or younger brother or elder or younger sister,
• Grandfather, grandmother on the mother's parent's side, maternal uncle, maternal aunty.

Appointment of Guardian by the Court after Divorce in Nepal

Suppose an individual refuses to take on the role of a guardian. In that case, the relevant ward committee of the respective Local Level may submit a petition to the court requesting the appointment of a guardian If the party involved submits a request to the court for the designation of a guardian. The court will assess if it is possible to safeguard the rights, interests, or well-being of the incapacitated or partially capable individual.

Case Studies/Case Law

Motiratna Shakya v Shanta Shakya, Case: Certiorari, NLR 2044, P 1
Akhtar Ali Ansari v Khairunasa Ansari, Case: Divorce, NLR 2045 p. 736