Filing a Divorce Case: Nepal or Australia? Key Considerations for International Divorce

This article deals with international divorce (in the context of Australia), recognition of international divorce in Nepal, and the suitability of filing for divorce in Nepal.

The number of international divorces has recently increased. International divorce can result from a variety of situations, so it's important to consult a specialist to determine which countries should be considered for the divorce. We are referring to international divorce, for instance, when the marriage occurred in one country but the divorcing party now resides in another. Another instance of an international divorce is when one or both spouses reside in a nation of which neither is a citizen.

If you are divorcing abroad, whether you are a foreign national of Nepali descent or a native of Nepal, you must choose which nation has the best divorce laws. An official will in Nepal is how non-resident Nepali (NRN) who live abroad can request a divorce.

If you have obtained citizenship and Permanent Residence in the country and are a student in Australia. You can choose to remain overseas in this situation and file for divorce in Nepal. You can file for divorce by just creating a power of attorney at the Nepalese consulate there.

Eligibility of filing for divorce in Australia

• If you were born in Australia or acquired Australian citizenship via ancestry (you were born outside of Australia but at least one of your parents was an Australian citizen and your birth was recorded there).
• Possess Australian citizenship as a result of receiving it (a citizenship certificate will be needed).
• Is legally residing in Australia and intends to do so in the future. You must provide proof that you have resided in Australia for at least the past 12 months, such as a passport with an entry date that is at least a year old and a current or valid visa.

Application for Divorce in Australia

A divorce application can be submitted online using the Commonwealth Courts Portal. If both partners agree to seek a divorce, they may file a "joint application" and split the filing fee.

One spouse cannot prevent the other from applying for divorce or the court from granting the divorce if they refuse to participate in the divorce application. To serve the other spouse with the divorce papers, the person seeking the divorce must file a "sole application" for divorce, pay the application fee themselves, and file a divorce petition.

Married Overseas

The Federal Circuit and Family Court of Australia have the authority to dissolve marriages that occur outside of Australia but are recognized there.

The divorce applicant must file both an English translation of the marriage certificate and an affidavit translation of the marriage certificate from a certified translator if the original marriage certificate is not in English.

Recognition of divorce overseas in Nepal

The divorce decreed in a foreign nation is recognized by Section 706 of the Civil Code, 2017. If the legislation of the nation where divorce is sought is followed and the relationship between two Nepalese citizens or between a Nepalese citizen and a foreigner is broken. According to Nepali law, such a divorce shall be acknowledged and may also be carried out. Typically, a judgment rendered in one nation is upheld in another; this is essential for the sanctity of judgment.

To establish consistency in marriage choices, Nepal has also ratified The Hague Convention of 1968 on the recognition of divorce and legal separations. A divorce obtained outside of the country is only invalid, per Section 10 of The Hague Convention, if it goes against public policy. As a result, choices that do not violate public policy must be accepted and carried out in line with the law and on the principles of reciprocity and courtesy.

Any country you travel to will recognize a divorce that takes place in one country as being genuine. It doesn't necessarily follow that the marriage will be reproduced in another nation. Whenever a marriage is ended through divorce, it becomes irreversible wherever you are. Everywhere you go, your divorce will be acknowledged and approved. After a divorce and the problems are settled by a court in one nation, Res Judicata (Issue Estoppel) applies. After that, the identical problem cannot be brought up in another nation.

The circumstances under which a judgment rendered by a foreign court is recognized are governed by international law. The basis for a court's decisions in one nation appears to be reciprocity, committee, or public policy about recognition and application in another nation. In that regard, different bases are determined. The following are the majors of which:

• Foreign courts should have jurisdiction, if possible.
• The choice shouldn't have been made in error.
• The choice shouldn't go against public policy.
• Judgment should not violate the principle of natural justice.
• The choice needs to be definitive.
• Courts ought to be unbiased and independent.

What should you do in Nepal if you have divorced outside of Nepal?

If you are a citizen of Nepal and you divorced in another nation, you must follow a short procedure for Nepal to recognize your divorce. If you have obtained a divorce outside of Nepal, you must do the following steps:

If personal occurrences occurred abroad, they must be reported by Subsection 1 of Section 4(2) of the Birth, Death, and Other Personal occurrences (Registration) Act, 2033. If the person has returned to Nepal, he or she must give notice within 60 days of the date of their return. The individual must provide notification of his divorce as well as the divorce judgment letter that has been sent by the foreign court to the appropriate ward office of the municipality.

Benefits of Divorce for a Nepali couple residing abroad in Nepal

You can gain the following advantages from divorcing in Nepal:

1. It is more Economic than foreign.

Divorce is very expensive in Australia. The local attorney will charge you a lot of money every minute after you file for divorce overseas. If you want to get a divorce abroad, it is very expensive. However, divorce in Nepal is far less expensive than divorce outside of Nepal. In this case, there are no hourly fees. You can file for divorce and settle it for less money with the help of specialists at our law firm.

2. It does not require much time as compared to other Nations.

In a nation like Australia, you must have lived there for at least twelve months before filing for divorce. Additionally, divorce in Australia takes longer than a year. Divorce occurs more quickly in Nepal. It won't take longer than two days if you choose the mutual consent divorce. You can send the power of attorney to your designated heir in Nepal through the embassy if you are unable to travel there yourself. You may divorce in Nepal with this method as well, and it doesn't take as long.

3. Feeling of safety

When divorcing in any other foreign country, you cannot be safe. You could be sued in Nepal for property by your wife. You will eventually run out of money and assets both domestically and overseas if you do this. You could lose a lot because of this. Therefore, it would be best if you filed a complaint in Nepal.

4. Difficult situation will be minimal

To obtain a divorce overseas, you must deal with numerous obstacles. Once you've submitted a divorce petition, you must serve your spouse with a summons or notice. It is highly challenging to send the notice or summons to Nepal if your spouse lives there while you are overseas. It is preferable to apply for divorce in Nepal in this situation. It is very easy to send summons or notices in Nepal.

5. There won’t be any language barrier.

When you get a divorce abroad, you may face a language problem. The law places a high value on language. If you don't comprehend any legal jargon, you risk losing many of your rights. Therefore, you should obtain a divorce in Nepal since you can understand every legal detail because this country's official language is the same as your own.

Basic FAQs:

Can anyone divorce from Australia in Nepal?

Obtaining a divorce in Nepal from Australia is a straightforward process that doesn't require the spouse to be present in person. 

If anyone is an Australian citizen of Nepali origin. Will they be able to divorce without traveling to Nepal?

No. You do not need to obtain a divorce by traveling to Nepal. If you choose to remain in Australia, you can easily divorce your spouse.

How is it possible to get a divorce without traveling to Nepal?

You must designate a trustworthy person or a lawyer to act on your behalf. The representative you choose is referred to as a "Power of Attorney (अख्तियारनामा/वकालतनामा)".

How can a Power Of Attorney appointed? Should anyone visit Nepal to appoint Power of Attorney if he is in Australia instead?

• To begin with, you must decide who you wish to grant power of attorney to.
• Second, granting power of attorney doesn't require travel to Nepal. Read our Blog on how to make Power Of Attorney.

Are witnesses necessary for the power of attorney to sign the document?

Yes, according to the law, there must be at least two witnesses present when the paper is signed. To complete the process, you must bring two witnesses.

Who will draft the letter or other document for the power of attorney?

The individual to whom you are delegating the power of attorney will create the relevant paperwork on your behalf. For instance, if you designate Person 'A' from a law firm as your power of attorney, Person 'A' will create the power of attorney document that needs to be signed. You need not be concerned.

Can Australian citizens have powers of attorney?

No. Australian citizens are not eligible to be appointed as agents. As required by law, you must select a person who is a citizen of Nepal and resides there.

How does one file for divorce from Australia?

You can choose to designate a representative if you are unable to physically attend court to file for divorce. This representative could be someone you have complete faith in, such as a family member, friend, or recognized legal professional. You must formally authorize this person to operate on your behalf by giving them power of attorney. After being appointed, the power of attorney will represent you in court appearances, document submissions, and other formal actions.

Power of attorney: What is it?

When you are unable to be present or are unable to make decisions due to mental or physical infirmity, a power of attorney (POA) gives one or more people the power to act as your authorized representative or agent.

What role does a Power of Attorney play in the divorce process?

The person with the power of attorney must be available at the Nepali Embassy in Australia.

You should sign the Power of Attorney to grant that individual the authority to act on your behalf after it arrives at the Nepalese Embassy in Australia.

The individual receiving the power of attorney must sign it and affirm that they have the right to act on your behalf.

Following that, the power of attorney returns to Nepal to represent you in court.

The Power of Attorney has the power to sign any divorce-related legal document on your behalf before, after, or during court proceedings.

What paperwork is necessary for a Power of Attorney assignment?

• Original and copy citizenship certificates for the applicant and the receiver of the power of attorney.
• A legal document that has been created to confer power of attorney.
• A copy of the applicant's marriage certificate.
• Two passport-sized photos of the applicant and the beneficiary each
• Information on the challenged properties and assets
• Court costs

Conclusion

The nation with the greatest connections must be the one to begin legal procedures. To facilitate the prospect of going to divorce with the least amount of injury, there is no single legal standard. The foregoing guidelines may be combined with the reality of where the spouses are in each particular situation or with other factors, such as where the minor children dwell, if any, etc. It will be easier to file a divorce in Nepal rather than in Australia if you are origin of Nepal.