Divorce law in Nepal: Here’s everything you need to know about

From a legal perspective, divorce is the dissolvent of a marital relationship approved by the competent authority. Every country governs this affair with a legal system.

Here is all that you need to know about the divorce law system in Nepal.

1. Concerned legislation and court

In Nepal, district courts have jurisdiction over cases of divorce. The Civil Code 2017 is the governing law for divorce in Nepal. Section 93 to 104 of the chapter on divorce are major provisions related to divorce.

2. Conditions to file a lawsuit

Any desiring party (a husband or a wife) can initiate the case of divorce at the concerned district court. The husband can file the petition if the situation fulfils the circumstance provided in section 94 of the Civil Code 2017, which are listed below:

1. If the wife is living separately for consecutive three years or more without the consent of the husband,
2. If the wife deprives the husband of the maintenance costs or expels him from the house,
3. If the wife commits an act or conspiracy that results in grievous hurt or other severe physical or mental pain to the husband,
4. If the wife is proved to have made a sexual relationship with another person.

Similarly, section 95 of the code provides the ground upon which wife can file a case of divorce if the situation fulfils the circumstance provided in the aforementioned section, which are listed below:

1. If the husband is living separately for consecutive three years or more without the consent of the wife,
2. If the husband deprives the wife of maintenance costs and expels her from the house,
3. If the husband commits an act or conspiracy that results in grievous hurt or other severe physical or mental pain to the wife,
4. If the husband concludes another marriage,
5. If the husband is proved to have made a sexual relationship with another person,
6. If the husband is proved to have raped his wife.

3. Procedure for divorce

1. If the above-mentioned conditions are fulfilled, the party can initiate the case before the concerned district court. For any party to commence the process, the party willing to get a divorce shall file a petition.
2. This would be followed by the process of issuing a notice to another party by the official(s) of the court. Once the notice is furnished, the receiving party shall submit a written reply.
3. After submission of the written reply and fulfilment of certain court procedures, certain time is provided for the mediation between the two parties.
4. If the parties are not able to reach any decision through mediation, the court will render its decision in the filed case.

4. Custody of children after divorce

Every time a case of divorce reaches the Court, the issue of children’s custody will be invoked. Child custody and guardianship are legal terms that are used to describe the legal and practical relationship between a parent and his or her minor child, such as the right of a parent to make decisions for the child, and the parent’s duty to care for the child.

The court mainly considers four aspects while providing custody to the child.

1. The best interest of the child
2. The economic conditions of parents
3. Age of the child
4. Preference of the child

Section 115 of the Civil Code 2017 has explicitly illustrated provisions for the custody of the child if the matrimonial relationship between a husband and a wife is terminated in accordance with the code.

The custody of the child will be determined as mentioned below:

1. The child who has not attained five years of age remains under the custody of the mother as per her desire, irrespective of whether or not she has concluded another marriage.
2. The child who is above five years of age remains under the custody of the mother if the mother desires except that the mother has concluded another marriage.
3. In circumstances other than (a) and (b), the child remains under the custody of the father.

In addition to this, subsection 2 of section 115 states that notwithstanding anything contained in subsection 1 where the husband and the wife have entered a separate agreement on the custody of the minor at the time of divorce or judicial separation, the agreement shall apply to the custody of the minor.