Divorce Law in Nepal
Divorce in general sense is the end of a marriage relationship formally. In legal sense divorce is the dissolvent of a marriage relationship approved by the concerned court. In Nepal, District Court has jurisdiction over Divorce cases.
The National Civil Code 2074, being the governing code has exclusively mentioned the provisions relating to divorce in Chapter 3.
Matters concerning divorce in The National Civil Code, 2074:
Partition
Alimony
Maintenance Cost
Custody
Who can apply for divorce?
Any husband and wife desiring for the dissolution of their conjugal relationship can apply for divorce. Divorce can be filed even by wife or husband without the consent of other party.
What are the grounds for filing divorce without the consent of the other party?
By the provision under the existing civil code following are the grounds that must be met to file for divorce without the consent of the other party:
Husband may file for divorce even without the consent of the wife in following grounds:
If the wife has been living separately for consecutive 3 years or more without the consent of the husband,
If the wife deprives the husband of the maintenance costs or expels him from the house,
If the wife commits an act or conspiracy that results in 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.
Wife may file for divorce without the consent of the husband in following conditions:
If the husband has been living separately for consecutive 3 years or more without the consent of the wife,
If the husband deprives the wife of maintenance costs and expels her from the house,
If the husband commits an act or conspiracy that results in 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 relation with another person,
If the husband is proved to have raped his wife.
What is the procedure to effect divorce?
The National Civil Code 2074 has prescribed the couple desiring to divorce to follow following procedure:
Filing of petition:
In order to effect divorce, the first step is to file a petition in the concerned District Court. Whether the divorce is mutual or not, filing of petition in must.
Mediation:
After the filing of petition the court is obliged to facilitate such couple with mediation session to remind and conciliate them to the possible extent.
Court proceedings:
The next step after the mediation is court procedure which are listed order-wise below:
Summon from the court informing the parties at the beginning of the divorce procedure
Submission of the response letter(Pratiuttar Patra)
Hearing
Witness examination and evidence collection
Final hearing and decision
What are conditions of property partition?
In case of the property partition between the divorces parties, following are the provisions:
If the cause of divorce is the husband, the wife may demand for partition prior divorce,
In case of property that is registered in the name of both husband and wife or either of them, then such property shall be partitioned according to law prior effecting the divorce,
If the husband has himself not obtained partition from his father or other coparceners, the court shall inquire such coparceners and cause partition to be apportioned between the husband and the wife,
If partition in above mentioned situation appears to take a long time the court may effect divorce and order the husband to provide the wife with monthly expenses as alimony according the property and income of the husband until the partition is effected. However if the divorcee wife concludes another marriage the wife cannot be entitled to partition,
But if the divorce is caused by the wife the husband is not obliged to any of the above mentioned responsibilities i.e. providing alimony, partition share.
What are the conditions for obtaining alimony?
If the divorce is caused by the husband, the wife may demand a lump sum amount or annual or monthly expense or alimony from the husband instead of partition share. The court may order the husband to provide such wife with a lump sum amount on the basis of his property or income.
However if the divorcee wife concludes second marriage, providing alimony is not required.
What are the conditions for obtaining Maintenance costs?
If the divorcee wife who has not obtained partition share from her husband for there is no property for partition, desires to receive maintenance costs from the husband and the husband has income, the court may order the husband to provide the wife with maintenance costs according to the income of the divorced husband.
However the wife can’t obtain maintenance cost in following mentioned conditions:
If such wife concludes another marriage,
If the wife has higher income than that of the husband.
Who can get the Custody of the child?
For providing the custody of the child, the court consider following aspects:
Best interest of the child
The economic conditions of the parents
The child’s age
The child’s preference
Disclaimer: This writing is prepared to share general information only and for legal purposes, advice of legal professionals is must.
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ADVOCATE AJAYA SHRESTHA
ADVOCATE PRABIN SHRESTHA
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