Before we talk about Divorce, let us know about Marriage. Without Marriage, there will be no divorce. So, what is marriage? It can be defined as a union of males and females to establish a stable relationship through which they can develop a family. It is a socially acceptable relationship.
The law of Nepal defines Marriage as “when a male and female accept each other as husband and wife through any celebration, ceremony or religious rites, then the marriage between two individuals is deemed to be concluded.
Every person shall have the right to get married and establish the family being inside the legal jurisdictions and no one can seize the right. Some of the legal criteria to be looked for before getting wed-locked are:
A. if both, males and females agree to accept each other as husband and wife,
B. if there exists no relation by blood, punishable by the law of incest,
C. if there exists no prior matrimonial relationship between them,
D. if both attain the age of 20.
The law also says that marriage can be done inside the incest only for those cultural groups who carry this custom for very long.
Hence, when the marriage between two individuals of a different gender is concluded they are called as Husband and Wife of each other. They will possess responsibilities towards each other, the home of a husband will be considered as the home of the wife. The husband and wife should be respectful towards each other and the household should run on cooperation. No individual can restrict each other to engage in occupation.
Now, after knowing about marriage briefly let us talk about Divorce.
What is Divorce or marriage dissolution?
Divorce means the legal action a married couple takes to terminate their matrimonial relationship with each other. It can also be considered as dissolution of marriage because the couples do not want to be together. It is the separation before the death of a spouse.
Hence, in Nepal there exist some legal provisions related to divorce. The Civil Code, 2074 provides for the provision related to Divorce, and whenever some people proceed for divorce the legal actions are taken based on the provision included in the Code.
So, let us discuss what does the Civil Code says:
Husband and wife can at any time divorce each other as per their will. The couple can get a divorce with the mutual consent or the spouse may file the divorce separately without having the consent of others. The husband and wife wanting divorce have to come up with the written notice to the court.
Before divorce court resolves the issue of custody of their children, about the partition of property, support from a spouse, and alimony. So, the issues and provisions related are discussed.
Either the husband or wife can file the divorce seeking the ground of any given circumstances without the consent of the spouse described below.
What is the legal ground for a husband to divorce?
According to Part 3, Section 94 of The Civil Code, a husband can seek the following ground for divorce without the consent of his wife:
- if the wife is living separately before the partitioning of property without the consent of husband for consecutive 3 years,
- if the wife deprives her husband of food and clothing and expels from the house,
- if the wife creates conspiracy, creates harm to the husband, or gives mental or physical stress,
- if it is proved that the wife is having a sexual relationship with an outsider.
As we talked about the legal ground for husband, there also exist the legal grounds for the wife to file the divorce.
What is the legal ground for the wife to divorce?
According to Part 3, Section 95 of The Civil Code, the wife can seek the following ground for divorce without the consent of the spouse:
- if the husband is living separately before the partitioning of property without the consent of wife for consecutive 3 years,
- if the husband deprives of food, clothing, and expels from the house,
- if the husband plans conspiracy, creates harm to the husband, or gives mental or physical stress,
- if it is proved that the husband is having a sexual relationship with an outsider.
What are the procedures to file a divorce?
The provisions related to the procedures for filing for divorce are described in Section 96, Section 97, and Section 98 of the Civil Code. The first step is, husband or wife has to file a suit for divorce in the District Court. After the lawsuit is filed, the court shall try to convince and conciliates them to the extent of possibility but if they do not try to be convinced and want for separation then the court finds appropriate for the relationship to be divorced rather continue for longer.
The court shall affect the divorce after one year from the date of the petition. The next step after filing the divorce petition is that the aggrieved spouse shall be informed that the divorce procedure has begun against him. Both the parties appear at the District Court, the aggrieved party has to show the response of suit, whether accepting or rejecting the points of the petition.
Once both the parties present their points, the trial begins. The court hears the parties with the evidence. The court gives the order to resolve the issues of child custody, alimony, etc. And finally, the court announces the dissolution of marriage. Hence, the divorce between husband and wife is concluded.
Now, let us move towards the provision of partitioning property when the divorce is concluded.
What about the Property Partition after divorce?
The provision related to partition of property are included from Section 99 to Section 103 of Civil Code.
The partition of property shall be done before the divorce if the suit is filed by wife meeting the legal grounds to divorce. (The legal grounds are discussed above)
If the common property is registered in the name of both or husband or wife, such property shall be partitioned before divorce as per the law.
If the husband himself has not got the partition from his father, then the partition shall be made between husband and wife by consulting other coparcener if they exist.
If such partition takes a long time then the divorce procedures can be taken further by giving orders to the husband to look for the alimony until the partition is made. But the wife shall not get such partition if she marries the other guy until the partition is made.
And if the divorce is effected because of wife (i.e. husband files a suit), she shall not be entitled to partition share or alimony.
The wife can also take a lump sum of money or yearly or monthly alimony or expenses instead of partition share, the court orders the husband to do that based on his income. But she shall not be entitled to such alimony once she gets married to another person.
If the divorced woman dies, then her son/daughter shall be entitled to her property, and if there exists no son/daughter her ex-husband shall be entitled to her property received from him, and the successor from her maternal side shall obtain the property.
Always in the case of divorce, the question arises about the children relating to custody. The court has also made some of the rules for the custody of children of the divorced parent.
Who will take custody of children?
The care of children shall be done by both father and mother but if the parents are divorced, the custody of a child goes to:
A. if the child hasn’t completed the age of 5, can remain in the custody of his/her mother, if he/she wishes,
B. if the child has completed the age of 5, can remain in the custody of his/her mother if only she has not married another if he/she wishes,
C. child custody will go to his father besides the condition of (a) and (b).
Further, if the child has completed the age of 10, he/she can decide whether to stay with the mother or father.
Hence, anyone wanting divorce can obtain the divorce whether the other partner wants it or not. All you have to do is file a petition and if the husband and wife do not agree to be convinced, the court then affects the divorce after one year of petition. The divorce is deemed to be concluded. So, if you want to divorce, go through these provisions.