Nepal has witnessed a significant transformation in its divorce landscape over the past decade, with divorce cases increasing from just 1,355 in 2015 to over 50,111 registered cases by 2023. This dramatic rise reflects changing social attitudes, women’s empowerment, and evolving legal frameworks that have made the divorce process in Nepal more accessible and equitable for both spouses.
Understanding Nepal divorce law is crucial for couples considering separation, as the legal procedures, costs, and requirements can significantly impact the outcome. Whether you’re pursuing a mutual consent divorce or facing a contested proceeding, unknown about ground of divorce, court proceeding, this comprehensive guide will help you navigate the complex legal landscape with confidence.
Etymology and Basic Definition
The term “divorce” derives from the Latin word “divortium”, which means separation. It is also equivalent to the word “divort” or “divortere”. This Latin term “divorte” is a combination of “di” (meaning apart) and “vertere” (meaning to turn to different ways). The word has also been referred to as meaning separate, turn aside, divert, or leave one’s husband. Divorce is the act by which a valid marriage is dissolved usually freeing the parties to remarry.
According to Black’s Law Dictionary, divorce is defined as “the legal dissolution of a marriage by a court, i.e., a complete severance of the ties that bind the couple”
Sir William Blackstone, the renowned English jurist whose “Commentaries on the Laws of England” (1765-1769) became the foundational text for Anglo-American jurisprudence, provided detailed analysis of divorce under English common law.
Blackstone distinguished between two types of divorce:
- Divorce a vinculo matrimonii (Total Divorce):
- A complete dissolution of the marriage bond
- Must be for canonical causes of impediment existing before the marriage
- Declares the marriage null and void ab initio (from the beginning)
- Parties are separated pro salute animarum (for the salvation of souls)
- Divorce a mensa et thoro (Separation from Bed and Board):
- Partial divorce where the marriage remains valid but parties live separately
- Granted for supervenient causes arising after marriage
- Includes cases of “intolerable ill temper” or adultery
- Does not dissolve the marriage tie but prevents cohabitation
Blackstone noted that “the canon law deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made”
Theories of Divorce
The Fault/Guilt Theory of Divorce
The Fault/Guilt Theory of Divorce is a traditional legal theory that posits that divorce is only permissible if one spouse has committed a matrimonial offense, making that party the guilty one and the other party innocent. According to this theory, there must be a clear distinction between a guilty party (who has committed a matrimonial offense) and an innocent party (who has not), and only the innocent party can seek a divorce.
Key points of the Fault/Guilt Theory include:
- One spouse must be guilty of a matrimonial offense such as adultery, cruelty, desertion, insanity, conversion, venereal disease, leprosy, renunciation, or presumption of death.
- The innocent spouse has the right to seek divorce due to the fault of the other spouse.
- If both parties are at fault, no divorce remedy is available under this theory.
- The theory requires proof of fault in court to grant divorce based on guilt.
- It reflects a moral judgment on the conduct within the marriage.
This theory is reflected in older legal systems and statutes such as the Hindu Marriage Act of 1955 (amended later), which lists specific matrimonial offenses as grounds for divorce. The theory is criticized for its rigidity and potential injustice when both parties are culpable and it tends to prolong litigation and adversarial proceedings due to the need to prove fault.
Mutual Consent Theory
The Mutual Consent Theory or No-Fault Theory of Divorce represents a modern conceptualization of marriage dissolution emphasizing the joint will of the spouses rather than fault or blame. Mutual Consent Theory holds that a marriage can be dissolved by the mutual agreement of both spouses without either party having to prove fault, misconduct, or wrongdoing on the part of the other. Both parties agree that the marriage has irretrievably broken down and that they no longer wish to live together as husband and wife.
No-Fault Theory extends the idea and focuses on the fact that marriages may fail not because of a matrimonial offense but due to incompatibility, irreconcilable differences, or irretrievable breakdown of the marriage. It allows divorce regardless of who is to blame, prioritizing the autonomy of spouses to end unsustainable marriages amicably.
Key Features
- No requirement to prove adultery, cruelty, desertion, or any fault.
- Both spouses jointly file for divorce, signifying voluntary consent.
- There is typically a “cooling-off” or waiting period (e.g., 6 months under Hindu Marriage Act, 1955 in India) to allow reflection and potential reconciliation before final decree.
Legal Basis and Provisions (Example from India)
Under Section 13B of the Hindu Marriage Act, 1955, divorce by mutual consent is permitted if:
- Both parties have lived separately for at least one year
- They have mutually agreed they cannot live together anymore
- They file a joint petition for divorce
The court generally grants divorce after a waiting period unless the court finds reasons to believe reconciliation is possible.
Irretrievable Breakdown Theory
Irretrievable breakdown as a situation where the husband and wife have been living separately for a long period and there is absolutely no chance of them living together again. It is a legal concept in family law which posits that a marriage can be legally dissolved when the relationship between the spouses has deteriorated to such an extent that there is no reasonable possibility of reconciliation or restoring the marriage. In other words, the marriage is considered “irreparably broken” and cannot be saved by any means.
Indissolubility Theory
Indissolubility Theory is based on the principle that marriage is a permanent, lifelong union that cannot be dissolved or ended by divorce. According to this theory, once a valid marriage is contracted, it remains binding for life and cannot be broken by human actions or legal processes except by the death of one spouse. Marriage is seen as a solemn covenant or sacrament, especially in Christian theology, that establishes an everlasting bond between spouses. The marriage vows represent an irrevocable promise to remain united “till death do us part.” This commitment is not conditional on circumstances or changes in feelings.
Frustration Theory
The Frustration Theory of Divorce holds that a marriage can be terminated even in the absence of any matrimonial offense, when one spouse suffers from conditions that make the continuation of the marriage impossible or unbearable. It recognizes that certain circumstances cause the marriage to be “frustrated” or rendered meaningless for one spouse, justifying divorce.
Key Grounds under Frustration Theory:
- Mental Unsoundness: When a spouse is incurably of unsound mind or suffering from a severe mental disorder that makes it unreasonable to expect the other spouse to live with them.
- Physical Illness: Severe or incurable physical ailments affecting marital life.
- Venereal Disease: Contagious venereal disease that threatens the health of the other spouse.
- Renunciation: When a spouse renounces the world by entering a religious order or adopting ascetic life
- Disappearance: When a spouse has disappeared and is not heard of for an extended period
Divorce Process in Nepal
As we know that Divorce is the legal dissolution of a marriage by a court or competent authority. It formally ends the marital relationship between husband and wife, canceling or reorganizing the legal duties, responsibilities, and rights that come with marriage. Divorce typically involves issues like division of property, child custody, support (spousal and child), and visitation rights. Divorce law in Nepal is mainly governed by Muluki Civil Code, 2074 and Muluki Civil Procedure Code, 2074.
Chapter 3 of Muluki Civil Code, 2074 deals with the Provisions Relating to Divorce in Nepal.
Grounds of Divorce in Nepal
Divorce by Mutual Consent
As provisioned in Section 93 of Muluki Civil Code, 2074 a husband and wife can mutually decide to dissolve their marital relationship at any time if they both agree to it.
Ground of Divorce for Husband
Section 94 of Muluki Civil Code, 2074 provisioned that husband may file for divorce even without the wife’s consent in any of the following circumstances:
- Except in the situation where the husband and wife are living separately after taking a partition share or alimony according to law, if the wife lives separately continuously for three years or more without giving the husband’s consent,
- If the wife does not provide food to the husband or expels him from the house,
- If the wife performs any act or uses any weapon of a kind that causes the husband’s limb to be broken or any other serious physical or mental harm,
- If the wife is held to have maintained a sexual relationship with another male.
Ground of Divorce for Wife
Section 95 of Muluki Civil Code, 2074 provisioned that wife may dissolve the marriage relationship if, without the husband’s consent, in any of the following circumstances:–
- Except in cases where the husband and wife are living separately after partition or alimony pursuant to law, if the husband lives separately continuously for three years or more without the consent of the wife,
- If the husband deprives the wife of maintenance or expels her from the house,
- If the husband causes grievous hurt to the wife or inflicts severe physical or mental pain upon her,
- If the husband marries another woman,
- If the husband has sexual intercourse with another woman,
- If the husband rapes the wife.
Documents Required for Divorce in Nepal
Divorce in Nepal is governed by the Muluki Civil Code, and the process typically begins with filing a petition at the District Court where the marriage was registered or where either spouse resides. The required documents can vary slightly depending on the specifics of the case (e.g., mutual consent vs. contested divorce, presence of children, or if one spouse is abroad), but the following are the most commonly needed ones based on current legal practices:
- Marriage Registration Certificate: This is essential to prove the marriage. If the original is unavailable, alternative proof such as wedding photos, invitations, or affidavits from witnesses may be accepted.
- Citizenship Certificates: Copies of Nepali citizenship certificates (or passports if applicable) for both husband and wife. If one party is a foreign national, additional identification may be required.
- Passport-Sized Photographs: Usually 2-4 recent photos of each spouse.
- Birth Certificates of Children (if any): Required if the couple has minor children, to address custody and child support matters.
- Application or Petition for Divorce: A formal written application detailing the grounds for divorce, signed by the petitioner.
- Power of Attorney (if applicable): If one spouse is unable to appear in person (e.g., living abroad), a notarized power of attorney assigning representation to a lawyer or family member, along with their citizenship copies.
- Ward Office Recommendation (if applicable): If there has been a change in address or temporary residence, a letter from the local ward office confirming the current address.
Additional documents might be needed in specific cases, such as evidence supporting the grounds for divorce (e.g., proof of separation, infidelity, or abuse), property deeds for asset division, or income proofs for alimony claims. It’s advisable to consult a licensed Nepali lawyer or the relevant District Court for personalized guidance, as laws and requirements can be updated. For the latest official details, refer to the Law Commission of Nepal or Government Portals.
Step-by-Step Divorce Process in Nepal
The divorce process may include mandatory reconciliation attempts, especially if children are involved. Here’s a step-by-step overview:
- Consult a Lawyer and Prepare Petition (Pre-Filing):
It is usually a good practice to consult a lawyer for divorce since they have knowledge in these matters. As they can help to gather and prepare required documents (e.g., marriage certificate, citizenship IDs, children’s birth certificates if applicable, and evidence for contested cases) and draft the petition detailing grounds for divorce, property division, alimony, and child custody if relevant.
- File the Petition:
The husband or wife files a petition in the District Court. For mutual consent, both may file jointly; for contested, only the petitioner files. The petition must include the personal details of both spouses, marriage proofs, ground for divorce, relief sought and evidences supporting the divorce ground. It is necessary to pay court fees (typically NPR 500–2,000, plus stamps).
- Court Issues Notice:
If the initial filing is deemed legally sound, the court issues a summons (Myad) in the name of the defendant. The court notifies the respondent (other spouse) via registered mail, court officials, or public notice if unreachable.
- Submit Reply:
The respondent files a written response, admitting or contesting the claims. If the defendant fails to appear or submit the reply statement within the deadline, the court may decide the case ex-parte based on the prevailing law. The summons requires the defendant to appear in court and submit a written reply or defense within twenty-one days, excluding travel time.
- Mediation:
Mediation is a voluntary and confidential dispute resolution process where a neutral, impartial third party called a mediator helps the disputing parties negotiate and reach their own mutually acceptable agreement, rather than having a judge decide the outcome. Mediation is a form of alternative dispute resolution (ADR) that allows parties to resolve issues flexibly and can be used before or during legal action.
The court upon which an application is filed for divorce try to convince both parties to recall and inform make mediation to the possible extent. Even after causing to recall and mediation the husband and wife do not consent and if it appears appropriate to effect divorce rather than to maintain the marriage, the court shall effect the divorce after one year.
- Hearings, Evidence, and Arguments:
If mediation fails, multiple hearings occur where parties present evidence, witnesses, and legal arguments. The court examines grounds and any claims for property or alimony.
- Property Partition:
Partition of Property is mandatory before divorce if wife so demand and divorce is caused because of husband. If a petition of divorce is filed by the wife that her husband deprives her from maintenance or expels her from the house, causes grievous hurt to her or inflicts severe physical or mental pain upon her, married with another women, if her husband has sexual intercourse with another woman and she is raped by her husband, divorce is deemed to be caused because of the husband.
If a property in common is registered in the name of both husband and wife or either of them, then such property shall be partitioned between them according to law. If the husband himself has not obtained partition from his father or other coparceners, the court shall cause both parties to disclose the coparceners, and if there are other coparceners entitled to partition, inquire such coparceners as well, and cause partition to be apportioned between the husband and wife.
Meanwhile if it appears that it may take a long time to partition of property, the court may divorce between the husband and wife and order the husband to provide the wife with monthly expenses as alimony according to the property and income of the husband until the partition of property is done.
If such a woman concludes another marriage before partition of property, she shall not be entitled to a partition share. If divorce is done on the ground that the wife does not provide food to the husband or expels him from the house or she performs any act or uses any weapon of a kind that causes the husband’s limb to be broken or any other serious physical or mental harm, or she has maintained a sexual relationship with another male, then the husband isn’t compelled to provide partition share or alimony to the wife.
- Court Decree:
If mediation fails and the court deems divorce appropriate, it issues the decree. For non-consensual cases, this occurs after one year from filing of petition for divorce. The judgment given by court includes rulings on property, alimony, and child custody (priority to child’s best interest).
- Post-Divorce Registration:
Register the divorce and cancel the marriage certificate at the local ward office or Vital Events Registration using the court decree, citizenship documents, and photos. Either party can remarry immediately after. After the divorce is adjudicated by a court decision or effected through a mutual agreement by way of a compromise or mediation, the concerned ward office where the marriage record is maintained shall be informed. Upon receiving such information, the ward office shall record the details, cancel the marriage certificate and issue a divorce certificate to the husband or wife. If either the husband or wife, for any reason, is unable to be present at the ward office to complete the said process, it may also be carried out through power of attorney.
- Appeals:
Aggrieved parties can appeal to the Appellate Court within 70 days, and further to the Supreme Court if they are dissatisfied with the court decision. A person aggrieved from any act done or action may make a lawsuit within three months after the date of accrual of the cause of action or knowledge of such an act or action
Special Considerations
For Non-Resident Nepalis (NRNs):
Spouses living in abroad can also participate via embassy-verified Power of Attorney, assigning a lawyer or representative if unable to present at the court themselves. The process follows standard steps, but POA must include citizenship copies of all involved in the case.
If divorce is already done in foreign country court then such foreign divorces are recognized if comply with the foreign country’s laws (per private international law provisions) in Nepal. Such decision shall be certified by the Nepali Embassy located in that country, and an official translation of such decision into the Nepali language shall be obtained, and thereafter, by going to the concerned ward office in Nepal, the record of the divorce may be entered and a divorce certificate may be obtained.
Alimony
Alimony, also known as spousal support or maintenance, is a court-ordered payment from one ex-spouse to the other to provide financial support after a marriage has been legally dissolved. Its purpose is to help the lower-income spouse achieve financial self-sufficiency, maintain a similar standard of living to that enjoyed during the marriage, or cover costs for education and training. Alimony is Nepal is mainly governed by Muluki Civil Code, 2074 under Section 100.
It states that if a wife who is entitled to divorce does not take a partition share and wishes to receive a lump sum amount or annual or monthly amount or expenses from the husband, the court may, on the basis of the husband’s property or income, order the husband to provide such wife with a lump sum amount or annual or monthly amount or expenses. But if wife enters into another marriage or the wife’s income is higher than that of the husband, she shall not be entitled to receive such amount or expenses.
Conclusion
Divorce, fundamentally rooted in the Muluki Civil Code, 2074 serves as the necessary legal mechanism to dissolve a marriage deemed unsustainable. The process is meticulously regulated by the Muluki Civil Procedure Code, 2074, which aims to make the proceedings simplified and timely. Divorce is rights which can implemented by married couples to dissolve the marriage if it is impossible to continue either you are in outside the countries or inside.
Whether the separation is sought by the husband or the wife based on specific grounds such as living separately for three years or documented instances of harm or abandonment, the journey mandates a structured approach. The process begins by initiating a civil case in the relevant District Court with a formal petition. Mediation play as a cornerstone in this legal system facilitated by the court. If mediation fails, then only court proceeding begins.
Frequently Asked Questions about Divorce in Nepal
1. What are the new divorce rules in Nepal?
The current legal framework governing civil proceedings, including dissolution of relationship/divorce, is outlined primarily in the Muluki Civil Procedure Code, 2074 and the Muluki Civil Code, 2074. Divorce is covered under Provisions Relating to Divorce in Section 93-104.
2. What is the total cost of a divorce in Nepal?
The cost is based on court fees (adalati shulka). If a case that required court fees is settled by compromise (milapatra), half of the court fee is refunded to the plaintiff, appellant, or related party. If the compromise is proven before reconciliation during the initial stage, 75% of the court fee is returned.
3. What are the first steps I should take if I want a divorce?
The person wishing for a divorce must file an application at the relevant District Court. The court is then required to attempt mediation between the husband and wife.
4. How do you file for divorce in Nepal?
A divorce petition (application for dissolution of relationship) must be filed in the relevant District Court. The filing requires a written petition in the proper format (Schedule-1) which clearly outlines the claims, grounds, and evidence.
5. How can you get a divorce online in Nepal?
Online divorce is not still acceptable in Nepal. Physical filing of petition at the District Court is needed in Nepal. The proceedings require the defendant to appear in court after receiving a summons. Although summons or notices may be sent using electronic media, It doesnot mean that the entire divorce process including formal filing, mediation, presentation of evidence and judgment are entirely online. However if you are unable to present at the court then you can have a power of attorney who can act instead of you.
6. Can a husband file for divorce in Nepal?
Yes, a husband or wife can file a petition for the dissolution of the marital relationship/divorce.
7. Can a divorce be one-sided (unilateral)?
Yes, a divorce can be sought unilaterally by one party based on legally stipulated grounds, such as the other party living separately for three consecutive years without the consent of the other spouse. Furthermore, if the defendant fails to appear in court after receiving the summons, the court may proceed with a one-sided judgment.
8. Can I get married immediately after my divorce is finalized in Nepal?
Yes, a man and woman can marry immediately after the divorce. They may enter into marriage if there is mutual consent and if neither party is in an existing marital relationship or prohibited by law.
9. Where do I go to file for a divorce in Nepal?
A party seeking divorce must file an application at the relevant District Court.
10. Which court or authority handles divorce cases?
The initial jurisdiction for cases concerning the establishment or dissolution of relationships rests with the District Court.
References
- Muluki Civil Code, 2074
- Muluki Civil Procedure Code, 2074
- https://lawalpine.com/blog/divorce-process-in-nepal
