Divorce Process in Nepal: New Divorce Law in Nepal (2082)

Divorce in Nepal is a legal process that formally ends a marital relationship, governed by the Civil Code 2017. While traditionally considered taboo due to the country's conservative and patriarchal society, the perception of divorce is gradually changing. Both men and women have the legal right to initiate divorce, although women often face more social stigma and economic challenges. The grounds for divorce include incompatibility, abuse, infidelity, and prolonged separation. With increasing awareness of individual rights and gender equality, more people are asserting their right to end unhappy marriages, reflecting a slow but notable shift in Nepalese societal attitudes.

Legal Instrument guiding the Divorce process in Nepal

• Muluki Civil Code 2074
• Muluki Civil Procedure Code 2074

Substantive provision regarding Divorce is stated in Muluki Civil Code 2074, Chapter 3, sections 93 to 104.

Grounds for Divorce in Nepal

A. Ground of divorce for the Husband.

1. Except where the husband and wife live separately after obtaining their partition share or separating bread and board by law, if the wife has been living separately for three or more consecutive years without the husband's consent.
2. If the wife deprives the husband of maintenance costs or expels him from the house.
3. If the wife commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the husband.
4. If the wife is proven to have had sexual relations with other people.

B. Ground of Divorce for the Wife.

1. Except where the husband and wife live separately after obtaining their partition share or separating bread and board by law, if they have been living separately for three or more consecutive years without the husband's consent.
2. If the husband deprives the wife of maintenance costs or expels her from the home.
3. If the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife.
4. If the husband concludes another marriage.
5. If the husband is proven to have had sexual intercourse with another woman.

In Nepal, Divorce is conducted in two ways:

• Divorce by Mutual Consent
• Divorce through husband or wife without consent in a one-sided way.

The divorce process without consent in Nepal

1. Step 1: Filing of a plaint of divorce by the plaintiff in the concerned district court
2. Step 2: Notice to be provided to the defendant.
3. Step 3: Defendant files the written reply.
4. Step 4: The process of mediation is started between the husband and wife.
5. Step 5: Witness Examination
6. Step 6: Division of property is mandatory before the Divorce.
7. Step 7: Final decision by the court.

Step 1: Filing of a plaint

The spouse who wants the divorce (plaintiff) files a petition in the concerned District Court stating the reasons for seeking the divorce.

Step 2: Notice to the defendant

The court sends a legal notice to the other spouse (defendant), informing them about the divorce petition and asking them to respond.

Step 3: Defendant's written reply

The defendant has the right to file a written reply to the court, either accepting or contesting the claims made in the divorce petition.

Step 4: Mediation process

The court initiates mediation between the parties to see if reconciliation is possible. A neutral mediator helps both spouses discuss their issues and reach a possible settlement.

Step 5: Witness examination

If mediation fails, the case proceeds to trial. Both parties can present evidence and call witnesses to support their claims.

Step 6: Division of property

Before the court can finalize the divorce, the joint property of the couple must be divided fairly. This is a mandatory step under Nepalese law to ensure economic justice.

Step 7: Final decision by the court

After reviewing all the evidence, the court issues a final judgment. If the legal grounds are met and reconciliation is not possible, the court grants the divorce.

Time for completion

It may take more than a year. Exact time couldn't be stated

Divorce Process with Mutual Consent in Nepal

When both spouses agree to end their marriage, they can file for a divorce by mutual consent. This process is generally quicker, less stressful, and more straightforward compared to contested divorce. The steps are as follows:

1. Step 1: Filing a plaint in the court
2. Step 2: Defendant's written reply
3. Step 3: Joint Application
4. Step 4: Court Review
5. Step 5: Mediation
6. Step 6: Agreement on Terms
7. Step 7: Final Hearing
8. Step 8: Divorce Decree

Step 1: Filing a plaint in the court

One of the spouses (plaintiff) can file a petition in the concerned District Court stating the reasons for seeking the divorce.

Step 2: Defendant’s written reply

The defendant has the right to file a written reply to the court, either accepting the claims made in the divorce petition.

Step 3: Joint Application

Both husband and wife submit a joint petition for divorce to the concerned District Court, stating that they mutually agree to dissolve the marriage.

Step 4: Court Review

The court reviews the application to ensure that both parties are consenting freely and without any pressure or coercion.

Step 5: Mediation

The court may suggest or mandate a mediation session to confirm that reconciliation is not possible and that the decision is final.

Step 6: Agreement on Terms

Before the divorce is finalized, both parties must agree on key matters such as the division of property, child custody (if applicable), and alimony or financial support.

Step 7: Final Hearing

If the court is satisfied with the agreement and mutual consent, it holds a final hearing.

Step 8: Divorce Decree

The court then issues the final divorce decree, officially ending the marriage.

This process emphasizes cooperation, reduces emotional strain, and often leads to more amicable outcomes.

Time for completion

2 -3 working Days.

Documents required for initiating a Divorce in Nepal

1. Plaint of divorce.
2. Marriage registration certificate
3. Photos of marriage if marriage is not registered.
4. Recommendation of temporary residence (if required)
5. Citizenship
6. Photos
7. Birth certificate of the child (if applicable)

Process of divorce for a person living outside Nepal

A Nepali citizen needs a Power of Attorney to file a divorce case in Nepal. Power of attorney can be provided to anyone, friends, family, a lawyer, etc. Power of attorney is to be approved by the respective Nepal Embassy located in a foreign country. Process of issuing a POA are as follows:-

Step 1: Hire a Legal Representative in Nepal

The person living abroad must appoint a legal representative (lawyer or authorized person) in Nepal through a power of attorney (PoA). This PoA must be notarized and attested by the Nepalese Embassy or Consulate in the country where the person resides.

Step 2: Send Power of Attorney to Nepal

The attested power of attorney document should be sent to Nepal, where it must be registered at the concerned District Court.

The rest process of initiating is the same as above.

Issues arising after divorce

1. Partition of property during divorce

This is a mandatory clause in a marriage where the property should have been divided between husband and wife before being divorced.

The husband shall not be compelled to provide a partition share or alimony to the wife if a petition is filed for divorce on the ground.

• If the wife deprives the husband of maintenance costs or expels him from the house.
• If the wife commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the husband.
• If the wife is proven to have had a sexual relationship with another person.

2. Alimony

In Nepal, a woman is usually granted alimony in the case of her having no independent source of income; however, both husband and wife can ask for alimony based on the financial dependency on the other. The final decision of amount and time comes under the discretion of the court for fairness, considering the law. Muluki Civil Code 2074 section 100 states about alimony.

Section 100 of Muluki Civil Code, 2074 states that if the wife who files divorce desires to obtain from the husband a lump sum amount or annual or monthly alimony or expenses, instead of the partition share, the court may order the husband to provide such a wife with a lump sum amount or annually or monthly or expenses on the basis of his property or income.

3. Custody of children after divorce.

In Nepal, the custody of children after divorce is determined by the best interests of the child, as per the Civil Code 2017. Either parent can be granted custody, but the court considers factors such as the child's age, health, emotional needs, and each parent's ability to provide care. Generally, mothers are preferred for younger children, especially under five years. However, the court may award custody to the father or even a guardian if the mother is deemed unfit. Both parents may be granted visitation rights, and custody arrangements can be modified later based on changing circumstances.

• Under 5 years: The mother will have custody of the child, regardless of whether she remarries or not.
• Above 5 years: If the child is older than five, custody can remain with the mother if she has not remarried and she wishes to take responsibility.
• After 10 years, the child's opinion must be considered when deciding custody.

The end of a marital relationship doesn’t end the relationship of father and mother towards their children.

4. Remarriage

In Nepal, remarriage after divorce is legally permitted for both men and women under the Civil Code 2017. Once the court finalizes the divorce and issues a divorce decree, either party is free to remarry without any legal restrictions. No mandatory waiting period is required, but legal documentation confirming the divorce must be presented during the registration of the new marriage.

The divorce process in Nepal, as governed by the Muluki Civil Code 2074, provides a structured legal framework for ending a marital relationship, whether through mutual consent or without consent. While the procedure varies based on the type of divorce, it ensures fairness through steps like mediation, property division, child custody, and alimony. Despite cultural stigma, increasing legal awareness and social changes are empowering individuals, especially women, to seek divorce when necessary. Issues such as custody, property, and remarriage are carefully addressed by law. Overall, Nepal’s divorce laws aim to protect the rights and dignity of both parties during and after separation.