Divorce Lawyer in Nepal: Unconsented Divorce Process between Spouse

In this article Divorce Lawyers highlight on unconsented divorce between husband and wife in Nepal and its process.

1. 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.

2. Governing Laws for divorce in Nepal

• Muluki Civil Code, 2074
• Muluki Civil Procedure Rules, 2075

3. 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.

4. 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

5. 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:

1. Mutual consent divorce
2. 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.

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;

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;

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:

1. Financial conditions of both spouses
2. Capability to look after the child

• Health condition of both of them

1. Earning capacity
2. Standard of living
3. 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 info@lawinpartners.com

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