In this article Divorce Lawyers highlight on unconsented divorce in Nepal and its process.
Introduction:
Divorce is the legal termination/dissolution of marriage existing between husband and wife by a court or other competent body. For legal validation, a divorce must be concluded only in the court.
Governing Laws for divorce in Nepal
- Muluki Civil Code, 2074
- Muluki Civil Procedure Rules, 2075
Who can file divorce case in Nepal
- Only husband or wife can file for divorce in Nepal
- If the husband or wife cannot be physically present in the court, the the assigned Power of Attorney (POA) who can act on behalf of them may file for divorce.
Where can husband or wife file for divorce
The husband or wife who wants to file for divorce have to follow the legal jurisdiction as to where to file for divorce or what would be the authority for divorce filing;
- District Court of Husband or Wife of their permanent address.
- District Court of temporary address of husband or wife (here, temporary residence recommendation document of temporary residing ward is needed)
- In case of property with divorce case, in the District Court where the property is locate
Legal grounds for divorce
In context of Nepal, spouses or married couple need to provide some grounds or reasons for divorce in their petition while filing for divorce. Basically, as per new National Civil Code of Nepal, 2074, there are certain conditions for both husband and wife to file divorce petition in the court;
6. Forms of Divorce
Basically, as per Nepalese law, divorce is conducted in mainly two ways:
- Mutual consent divorce
- Unconsented divorce
1.Mutual Consent Divorce
- Dissolution of marriage between husband and wife at any time from their mutual understanding (concluded only in court) that the marriage has broken down and they are willing to separate by mutual agreement.
- In this type of marriage both the husband and wife have understanding on various aspects such as division of property, alimony, child custody and others and they act accordingly upon reaching the agreement.
1.1. Meaning of Mutual Consent Divorce
- Dissolution of marriage between husband and wife at any time from their mutual understanding (concluded only in court) that the marriage has broken down and they are willing to separate by mutual agreement.
- In this type of marriage both the husband and wife have understanding on various aspects such as division of property, alimony, child custody and others and they act accordingly upon reaching the agreement.
A. Mutual Consent Divorce between both the Nepali citizens present in Nepal itself:
- Required Documents:
| S.N | Required Documents for Mutual (Understanding of Husband and Wife) Consent Divorce |
| 1. | Citizenship of both husband and wife |
| 2. | Marriage registration certificate (if not then, marriage photos will work) |
| 3. | Child birth certificate (if having any child) |
| 4. | Passport size photos (2 copies each) |
| 5. | Temporary residence document from the ward office (if either one or both the parties be the citizen of any other district other than the citizenship issuance district) |
2. Process of mutual consent divorce between both Nepali Citizens physically present in Nepal:
B. Mutual Consent divorce in case of one party being Nepali citizen and other being foreigner
- Required Documents
| S.N | Required Documents for Mutual Consent Divorce |
| 1. | Citizenship copy of the Nepali citizen and passport copy of the foreigner. |
| 2. | Marriage registration certificate (if not then, marriage photos will work) |
| 3. | Child birth certificate (if having any child) |
| 4. | Passport size photos (2 copies each) of both husband and wife and of the assigned POA too. |
| 5. | Temporary residence document from the ward office (if Nepali citizen be the resident of any other district other than the citizenship issuance district) |
| 6. | If foreigner is in Nepal at the time of divorce, then, must appear in the court otherwise, Authorized Power of Attorney (POA)(”Adhikrit wareshnama”) is required that must be notarized by the Notary lawyer in the foreign country. |
C. Process of mutual consent divorce between one party being Nepali citizen and other being foreigner:
- Required Documents:
S.N Required Documents for Mutual Consent Divorce 1. Citizenship copy of the Nepali citizen and passport copy of the foreigner. 2. Marriage registration certificate (if not then, marriage photos will work) 3. Child birth certificate (if having any child) 4. Passport size photos (2 copies each) of both husband and wife and of the assigned POA too. 5. Temporary residence document from the ward office (if Nepali citizen be the resident of any other district other than the citizenship issuance district) 6. If foreigner is in Nepal at the time of divorce, then, must appear in the court otherwise, Authorized Power of Attorney (POA)(”Adhikrit wareshnama”) is required that must be notarized by the Notary lawyer in the foreign country. 2. Process of divorce
Process of Divorce (Mutual Consent) |
| – 2 days Procedure 1st day: Step 1: preparation of petition by one party who wants to file for divorce Step 2: filing of the divorce petition in the concerned court mentioning the grounds for divorce. (if the foreigner wants to file for divorce, the the assigned POA shall file for divorce on his/her behalf) Step 3: After the court examines all the documents and the petition and if it finds it under jurisdiction and fullfillment of all the required documents, registers the petition and provides the next day’s date for the final process of divorce. 2nd day: Step 4: preparation of respondant’s reply by another party (referred as “pratiuttar”) and other mutual application as well mutual consent document(“milapatra”) by both the parties. Step 5: physical presence of one party (Nepali citizen) and other assigned POA along with their original Identity card, citizenship) in the court. Step 6: other party shall give the reply of the petition as well both the parties shall submit mutual application and mutual consent document stating their consent for divorce. Step 7: And after the complete inquiry of the document by the court and after having registered such document, the file is taken before the Judge Step 8: If it seems to have followed the complete procedure along with other necessary required documents and if the Judge finds it appropriate than the divorce is concluded between husband and wife. Step 9: Issuance of divorce certificate. |
D. Mutual Consent Divorce between both parties being foreigners
- Required Documents
| S.N | Required Documents |
| 1. | Passport copies of both husband and wife |
| 2. | Marriage registration certificate (if not then, marriage photos will work) |
| 3. | Child birth certificate (if having any child) |
| 4. | If both the foreigners, husband and wife be in Nepal at the time of divorce, then, must appear in the court otherwise, Authorized Power of Attorney (POA)(”Adhikrit wareshnama”) is required that must be notarized by the Notary lawyer in the foreign country. |
| 5. | Passport size photos of both husband and wife, and of both the assigned POA in Nepal (2 copies each) |
| 5. | If available other evidences, then those evidences. |
2. Process of mutual consent divorce between both parties being foreigners:
E. Mutual Consent divorce between both parties being Nepali citizen living in foreign
- Required Documents
| S.N | Required Documents |
| 1. | Authorized Power of Attorney (POA)(”Adhikrit wareshnama”) authorized by the Nepalese Embassy in Foreign parties residing country. |
| 2. | Citizenship copy of both husband and wife |
| 3. | Marriage registration certificate (if not then, marriage photos will work) |
| 4. | Child birth certificate (if having any child) |
| 5. | Citizenship copy of both the assigned POA who is to represent on behalf of the husband and wife living in foreign |
| 6. | If available other evidences, then those evidences. |
| 7. | Passport size photos of the both husband and wife and of both the assigned attornies (2 copies each) |
2. Process of mutual consent divorce between both parties being Nepali citizen living in foreign:
2. Meaning of unconsent Divorce
Divorce concluded from court’s final verdict. When the husband or wife file for a divorce in the court not having mutual agreement, in this phase the court grants the divorce after examining the overall documents, evidence presented by the parties, arguments by the lawyers and so on. Unconsent divorce process is long, might take a whole year or more for final verdict.
2.1. Required documents for filing unconsented divorce in court
As this process takes long time and the parties to be secured of themselves provide the concrete evidence, or say documents or other related materials required in the overall procedure of the case. Mandatory documents required are;
| S.N | Required Documents |
| 1. | Citizenship or passport copy of both husband and wife, Citizenship copy of the assigned POA |
| 2. | Marriage registration certificate (if not then, marriage photos will work) |
| 3. | Child birth certificate (if having any child) |
| 4. | Temporary residence document from the ward office (if Nepali citizen be the resident of any other district other than the citizenship issuance district) |
| 5. | If the Nepali husband or wife living in foreign, then, Authorized Power of Attorney (POA)(”Adhikrit wareshnama”) authorized by the Nepalese Embassy in Foreign country. |
| 6. | In case of foreign citizen, POA to be notarized by Notary Lawyer and verified accordingly. |
| 7. | passport size photos of both husband and wife, also of the assigned POA (2 copies each) |
| 8. | Other relevant evidences and documents |
2.2. Divorce process
In this type of divorce, only one party either husband or wife becomes ready for divorce. The other party does not agree or does not want the divorce to happen. If so happened, then the court make decisions on the property division before divorce, child custody as to whom the child shall remain, child support and other issues. As there is disagreement of one party, the trial proceeding will be long and time consuming. For the unconsented divorce, the process for filing till the verdict, the overall procedure is discussed below.
Step 1: Preparation of petition mentioning the grounds for divorce either by husband or wife who wants to file for divorce
Step 2: Filing of petition in the concerned district court either by husband or wife along with the evidences that supports the petitioner.
Step 3: Registration of the petition by the court after examining all the details, evidences and jurisdiction if reached or not.
Step 4: Notice of petition filed to be given to the other party.
Step 5: Another party then appears in the court with his/her written statement or reply along with the available evidence within 21 days after he/she receives the notice of case filed.
Step 6: Then, the trial procedure begins in the court.
Step 7: Court gives order for witness examination or evidence submission.
Step 8: The court orders the parties to be sent for mediation in order to reconcile between them providing time period of 1 month.
Step 9: Each party choose the mediator of their own. Among the chosen 2 mediators, the court appoints 1 mediator through lottery process.
Step 10: if not reconciled within 1 months’ time period, then extra 1 month shall be provided by court order if the parties will to reconcile
Step 11: If both the parties are unable to reconcile from the mediation process, then other court proceeding begins.
Step 12: Other order to be passed by the court in different phase of trial proceeding
Step 13: Final decision
2.3. In case divorced is filed by wife demanding property share from husband
- In this situation, if it has not been mentioned in the petition the name of the co-parceners for property division, then the court asks the details of the co-parceners of the family with the opponent party along with the details of the property.
- If the opponent party submits the details of the property and whether the partition of the property has been done or not, the court then proceeds for the partition of property to be done.
- The wife is entitled to get the share of property from one part of the property share of her husband.
2.4. How does the wife get the property share from her husband at the time of divorce
- The wife gets her portion of property share from her husband’s share.
- If the partition is done between the co-parceners of her husband family, then if the husband has got his portion of share property, then, at the time the wife files for divorce, the wife gets her portion of share from her husband’s share legally.
- And if her husband has not got his portion of property share or if the partition is not done among the co-parceners of her husband family, then firstly the partition is done having equal share to all the co-parcner and after the husband gets his share, then it is divided equally with his wife.
2.5. Property rights of the minor after the divorce of his/her parents
Even after the divorce of parents, the property rights of the minor remain under the guardianship of his/her parents. Although, the custody of the minor remains under the mother, but the legal rights along with other property rights shall remain under the care of his/her father. When the child becomes competent, then the child can ask for his/her portion of property share from his father. The father would be bound to give his/her portion of share property.
2.6. Child custody provisions in case of divorce between parents
Normally, after the divorce the child basically remains under the custody of the mother. However, in certain conditions, the custody of the child is given to father also, as;
| S.N | Circumstances | Who can take custody |
| 1. | In the case of a minor who has not attained five years of age, and the mother if so, desires irrespective of whether or not she has concluded another marriage |
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| 2. | In the case of a minor above five years of age, except where the mother has concluded another marriage |
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| 3. | In other circumstances other than mentioned above |
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| 4. | If the minor is above ten years of age |
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Note: If the husband and wife have made separate agreement about the custody of the child at the time of divorce, then it shall be according to the conditions mentioned in the agreement. If both husband and wife comes to consent than either husband or wife can take custody of child.
2.7. Alimony/spousal support/maintenance cost for child and the wife from husband
- Until the divorce case continues in the court, husband need to provide monthly expenses as per the income till final decision of the court.
- The court after determining certain factors of both the husband and wife, orders for providing maintenance cost to his wife.
Factors include:
- Financial conditions of both spouses
- Capability to look after the child
- Health condition of both of them
- Earning capacity
- Standard of living
- Contribution during marriage and many more
- Wife if desires lump sum of amount as annual/monthly expenses instead of husband’s property portion court may order accordingly.
- If husband do not have any property but has monthly income, court order to provide maintenance cost to wife as per the income of divorced husband.
Please contact us today itself if you are in search of lawyers for guardianship process in Nepal on +9779841933745 or email [email protected]
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