People often tend to forget that Marriage and Divorce is a legal process just as much as it is an emotional and romantic one. There are a lot of documents and a few legal steps that are needed while registering for marriage and just as much for filing a divorce as well. Also, there are some confusions related to filing a divorce and in this article, we will be answering some frequently asked questions which are related to filing a divorce in Nepal.
Step 1: Fill the petition of filing a Divorce
The petition for divorce is the first step which is a complicated process in itself but in simple term it is a legal document filed by one spouse asking the other spouse for a divorce.
This includes the name of the spouse, children if there is any, who will take custody of the child, whether or not the one who is not in custody has to pay for child support, and the documents about the ownership of properties. The spouse who is filing the divorce has to fill this form at their district court. This step does not require the participation of both the spouses and it can be filed by any one of them.
Step 2: Notice to the second party
After the petition is filed a legal notice is given to the receiver. What this essentially does is restrict their travel privilege to some degree until the divorce is settled. Admittedly this does not restrict all travel freedom and the party is free to do whatever she wants as long as they can appear on the court at the required date but they are required to reply to the petition as soon as they can within a time limit.
Step 3: Reply from the second party
After the second party gets the petition s/he is urged to reply to the petition within a certain time limit. However, while this is being said there is no expiration date to the petition as long as it is not filled by both parties. The keyword here is “urged” because as long as the petition is not signed by both the parties, it is invalid and goes on to the list of wasted resources and backlog of cases but there is no legal law that states that the petition has to be signed. The spouse who gets the petition can accept, ignore or refute the petition where the recipient defends their marriage and refuses divorce.
Step 4: Try and help the couple to solve their issues
Needless to say, as with all of the cases that involve going to court, the process of filing a divorce can be a lengthy and expensive process. In Nepal, where there is already a long backlog of cases, it would be better for both the courts if the couple can reconcile and solve their issue instead of getting a divorce as it will be for the most part a waste of resources. Due to this reason, the court will try to make them think of not going forth with the divorce.
While this is being said, although the process of filing a divorce in Nepal is a legal issue, the decision is still the private issue of the couple so the court has no legal power to stop them from continuing. This is why the court can only “try” and make them reconcile and not go forth with the divorce. Although not common and kind of rare, they have succeeded in making at least a few of the couple retract their petition to filing a divorce in Nepal.
Step 5: Division of the Property
While this is not the most standard of the process and well used process since women in Nepal has gained more rights when compared to the past and they have on an average become as educated as men at least in the urban areas where most cases of divorce occurs, the wife can demand a part of the property of the husband.
The division of the property happens automatically in case of the shared ownership as per the agreement made by both parties but in case the husband has not inherited the partition of the property from his father or from those who share the property equally with him, also known as coparceners, the court shall ask him to disclose who they are. By consulting with the coparceners, the court shall then cause the division of the property if the wife demands.
This process can take a long time though and if it does seem to take time, the court can then order the husband to pay the wife monthly expenses till this process is done. However, the wife can also choose to not take the property but instead choose to take a lump sum money or alimony expenses as well and in this case, the court can order the husband to pay these until the decided date which is usually until the wife remarries.
All of this will be canceled if the divorce process is affected by the wife and along with this if the wife decides to marry someone else before the divorce process is completed, then she will be eligible to receive neither the alimony money nor the property of the husband.
Step 6: Decision from the court
This is the final step where the court intervenes and this is the step where the couple will officially be considered divorced. In this process, the judge will look at all the documents and the events that happened during the entire process. This includes the final reviewing of the documents to ensure that they have not been tampered with and everything is fair as per the law, the signatures, and the testimony as well as the reason for filing a divorce to ensure that nothing is out of order.
After all, this has been done, the divorce is finally declared and the process of filing a divorce ends. The entire process is then documented and presented to the ex-couple, for further proof and processing.
Step 7: Canceling the marital status
After the couple has been declared to be divorced they then have to go to their ward office and cancel their marriage registration certificate. The documents containing the final judgment of the divorce by the court are presented and after some paperwork the now ex-husband and ex-wife will get some of their documents stating their new marital status as unmarried which legally gives them the freedom to marry again without any issues.
Some Frequently Asked Questions (FAQ’s)
1. What are the documents required while filing a divorce in Nepal?
The documents required are :
- Proof of marriage which is in most cases a certificate of marriage but in case of missing any other documents which can certify that you are married to that person will do.
- Copy of the citizenship
- Passport size photo
2. How long does it take to complete the process of filing a divorce in Nepal?
The court will settle a date one year from the date when the petition is signed and commence the Divorce process.
During this year the couples are urged to settle any disputes that they have related to property and child support and this can lead to several small court hearings related to each issue but the final divorce will be settled in the previously issued date which is a year from the date of a petition filed. As with every case, there are some exceptions where some delays may occur due to some unexpected circumstances.
3. Can the husband or wife start the process of filing a divorce with the other’s consent?
This cannot normally be done but as with everything we have some exceptions and within these circumstances, this can be done. The exceptions are:
- When one of the spouses is proven to be an abuser
- They have been living separately without the consent of the husband/wife.
- Either husband or wife was expelled from the house without their consent.
- The husband rapes the wife.
- The husband does the second marriage without the mutual consent with the first wife
- They have proof that their spouse, be it husband or wife, has a sexual relationship with another person.
With this now you know the process of filing a divorce in Nepal but the thing that comes before divorce is a marriage of course so why don’t you follow this up with our work on “The Procedure of Court Marriage in Nepal With Applications“?