divorce-law

Divorce Law

Divorce Law In Nepal : Grounds for Dissolution of a Domestic Partnership

Divorce is defined as the “dissolution of marriage”. The terminology itself marks a distinct legal presence in the English language as demonstrated by the lexical entry of the word in the OED, which defines divorce as an official or legal process to end a marriage. Generally, it is the process where married partners legally separate from their matrimonial relationship. By extension, then, to be divorced the two parties must be legally married to each other. This article examines Divorce Law in Nepal, identifies the grounds for filing for a divorce and details the procedures for filing.

Marriage and Divorce Law in Nepal

Marriage can refer to a legal contract and civil status, a religious rite, and a social practice, all of which vary by legal jurisdiction, religious doctrine, and culture. Marriage, while carrying broader connotations elsewhere across various jurisdictions, has a strictly defined constitutional context in Nepal. In Nepal, the definition of marriage is conditional upon the setting of the same. A marriage may be concluded in Nepal between a man and a woman on the following conditions:

  1. both have attained twenty years of age;
  2. they are not relatives, punishable by law on incest;
  3. prior matrimonial relationship of both parties does not exist;
  4. both agree to accept each other as husband and wife.

Our laws contain some provisions regarding divorce in Nepal. The Civil Code, as the governing civil law, has made it possible for both husband and wife to get a divorce. As per the Divorce Law in Nepal, husband or wife cannot file for a divorce for trivial reasons. The claim for the divorce must fulfill the grounds for divorce that are mentioned in the Civil Code, 2074 otherwise the suit cannot be entertained in the courthouse.


Divorce by Mutual Consent

According to Divorce Law in Nepal, a couple can get a divorce with mutual consent, or either spouse may file for divorce separately without the consent of the other. In mutually consensual conditions, the couple come out of their marriage simply with the written legal consent of each other. However, there exists two facets upon which the husband and wife must reach a consensus. One such aspect is the alimony or maintenance issues. The legal provisions set no limits on the minimum or maximum amount of maintenance expenses. Another important consideration is custody of the child, if the marriage has been consummated, leading to a child or children. This, too, can be worked out effectively between the parties. Hence, child custody in mutually consensual divorces can be shared, joint, or exclusive depending upon the understanding of the former spouse.


Legal Grounds for Divorce

According to Section 94 of Civil Code 2074, husband or wife can seek a divorce in any of the following circumstances even without consent of their spouse:

Grounds for Husband:

  • if the wife has been living separately for three or more consecutive years, without consent of the husband;
  • 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 the grievous hurt or other severe physical or mental pain to the husband;
  • if the wife is proved to have made sexual relation with another person;


Grounds for Wife:

  • if the husband has been living separately for three years or more consecutively, without consent of the wife
  • if the husband deprives the wife of maintenance costs or expels her from home;
  • if the husband commits an act or conspiracy likely to cause grievous hurt or other severe physical or mental pain to the wife;
  • if the husband concludes another marriage;
  • if the husband is proved to have made sexual intercourse with another woman;
  • if the husband is proved to have raped the wife.

    Procedure for Filing for a Divorce

    The first step of the divorce procedure is to file for a Divorce Petition in the concerned District Court through a competent divorce lawyer. The suit for the divorce can be filled in the district court directly by the husband or wife. Prior to the ratification of the Civil code, 2074 the privilege to file a suit for divorce was given only granted to the wife, where the husband had no right to file suit for divorce against his wife. So, the husband, or wife as the case may be, desiring end the legal relationship shall file a petition in the court. After filing the petition, the court reminds and convinces both the parties and conciliates them to the extent possible. If the court fails to do so and deems appropriate to get the relationship divorced rather than to continue it any longer, the court shall affect divorce between them after one year of the filing of the partition. If the petition fulfills the grounds the suit could be entertained. The next step after filing the Divorce Petition is the service of summons on the contesting parties to inform them that a divorce procedure has begun against them by the aggrieved spouse. The party who is served the summon has to appear before the Judge of the District Court. After that, the opposite party need to submit the response of the suit, accepting or rejecting the points raised in the petition. Once both the parties have presented their points through the petition and the response, the trial begins where the court hears both the parties with their evidence and witnesses. The court may give the interim orders which are passed by the court related to child custody, alimony, maintenance and mediation between two parties, etc. The final step is where the court pronounces the final order dissolving the marriage after which the District Court proceedings will come to an end.

    Property Partition

    Partition of property will be effected before divorce if it is filed by the wife if the legal grounds for divorce are met. If property in common is registered in the name of both husband and wife or from is shall be partitioned between them according to law prior to effecting divorce.

    Also, if the husband himself has not obtained partition from his father or other coparceners, the court shall, by causing both the parties to disclose the coparceners, and if there are other coparceners who are entitled to partition, by enquiring such coparceners as well, cause partition to be apportioned between the husband and wife. If it appears that it may take a long time to effect partition, the court may effect divorce and order the husband to provide the wife with monthly expenses as alimony according to the property and income of the husband until the partition is done. But the divorcee woman if concludes another marriage before partition, she shall not be entitled to a partition share. And yes, if the divorce is to be effected because of the wife, the wife shall be entitled neither to a partition share nor alimony or annual or monthly expense.

    If the wife who files divorce desires to obtain from the husband a lump sum amount or annual or monthly alimony or expense, instead of partition share, the court may order the husband to provide such a wife (if she has not concluded another marriage) with a lump sum amount or annual or monthly alimony or expense on the basis of his property or income. Also, the wife (who has not concluded another marriage and who has not the income higher than that of her husband) can receive maintenance costs from her husband (if he has income) if the husband has no property for partition. If there exists a written agreement between the husband and wife on the partition share or alimony (which is not against the interest of a minor), it shall be according to such agreement.


    On the death of a divorcee woman, her son, daughter, if any, shall be entitled to her property, if not, the previous husband shall obtain the property received from such a husband, and the successor on her mother’s side shall obtain the other property


    Divorce Law in Nepal Quick Facts

    1.  What if I don’t want a divorce but my partner wants it?

    Anyone can obtain a divorce whether his or her spouse wants one or not. In no-fault divorce states, all you have to do is file your petition for divorce. If the husband and wife do not agree to conciliate between them despite being reminded and convinced by the court to that effect, the court shall effect divorce after one year of the filing of the petition.

    2.  How is property divided during divorce?

    In accordance with Divorce Law in Nepal, all property is considered to be marital property unless it can be proven that it is separate property. Separate property is property owned by one spouse prior to the marriage, property that was inherited and never commingle and property that was given as a gift to one spouse or the other.

    If there exists any written agreement between the husband and wife on the partition share or alimony to which the wife is entitled upon divorce, then it shall be according to agreement. But no agreement which is against the interest of a minor may be made. In the case, if the wife desires, the court may order the husband to provide a lump sum amount or annual or monthly alimony or expense on the basis of his property or income to such a wife.

    In such a case where there is no any written agreement between husband and wife on the partition share and wife does not agree for the lump sum amount then partition to be apportioned between the husband and wife if divorce is to be effected because of the husband. If a property in common is registered in the name of both husband and wife or either of them, then such property shall be partitioned between them according to law, prior to effecting divorce. However, if such a woman concludes another marriage before effecting partition, she shall not be entitled to a partition share. Other issues taken into consideration by Divorce Law in Nepal when dividing property are the earning power of each spouse, the expectation of a return on retirement benefits, contributions made by one spouse to the education or career development of the other spouse and the need of a custodial parent to stay in the marital home.


    3. What do I have to do to get the divorce process started?

    The process for divorce begins by filing a document in the court i.e. Complaint Paper or Petition or Firad Patra. Your spouse will be given a certain number of days (twenty days) to respond to the Complaint. How the case proceeds from there will depend upon how your spouse responds. You and your spouse may reach an agreement, your spouse may file a response (either agreeing to what you’ve requested in the Complaint or contesting it) or may not reply at all. Once your spouse responds, the court will set a date for either a hearing for temporary court orders or mediation. Other documents may also need to be filed, most commonly financial statements and properties. Things can become quite complicated in a contested case, with numerous documents being filed and custody of the children.

    4. How does the court determine the custody of children?

    The court will take into consideration what they feel is in the “child’s best interest.” The court will take into consideration a number of issues when considering custody. Issues such as who the child is living with at present, the relationship with each parent, age of the child, marital status of parents, and a parent’s ability to care for and provide for the child. However, in case of a minor having attained ten years of age shall choose either mother’s or the father’s custody, with whom the minor desires to live.


    5. Can a Nepalese citizen marry/divorce a foreign citizen in Nepal?

    If one or both party is foreigner and they wish to marry in Nepal, then they have to fulfill certain conditions as prescribed by law. They have to submit the Affidavit of eligibility to marry, Nepali translation of matrimonial law of their country, No Objection Letter from Embassy of concerned country along with other required documents. While concluding marriage in Nepal, the formalities to be fulfilled by the foreigners shall be governed by the law of Nepal. However, while concluding a marriage at a foreign embassy or consulate general situated in Nepal, the formalities referred to in the law of the concerned country shall be fulfilled.


    6. Which law will govern matrimonial relationship if the marriage between a Nepalese citizen and a foreigner is concluded?

    After the marriage, the matrimonial relationship and the consequence of marriage shall be determined according to the law of the country of their nationality if both spouses have the same nationality, and if the country of their nationality is not the same, according to the law of the country of their habitual residence and if even such a country is not the same, according to the law of the country of their residence for the time being. And if not so, the consequence of marriage shall be determined according to the law of the country of their marriage.

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