The National Civil Code 2017 provides for a divorce process in Nepal. Divorce is a legal process for the termination of marriage on the basis of either party’s fault or no fault.
The start of a relationship with a promise to live together until death separates them may not last for unprecedented reasons.
Togetherness may not last for a variety of reasons, be they financial, social, cultural or religious, or for no specific reason, so that the spouses choose not to remain together and to terminate their marriage formally.
New provisions are included in the new law on divorce proceedings in Nepal/provisions added to the newly adopted National Civil Code 2017 are as set out below.
New provisions included are as follows:
1. Grounds of divorce
The new National Civil Code 2017 has added grounds for divorce.
Prior to this statute, in the event that the spouse marries another woman, the other spouse may apply for a divorce in compliance with the law. The current provision of the statute criminalizes and does not give legal validity, thereby discouraging multiple marriages.
In the previous statute, if either of the spouses has kicked the other spouses out of the house; this does not constitute grounds for divorce. However, the new law provides one of the grounds for divorce for the situation in question.
If such a situation arises, the spouse (husband) may file a petition against his wife before the police, and that registered petition may be used when filing for divorce. The husband can file an application for divorce.In the past, there was a situation in which the spouse (husband) had to deal with any kind of violation committed against the spouse (husband) of the other spouse (wife). Since 17 August 2017, the alleged victim (husband) has been allowed to file for divorce with a new statute.
2. No property for the wife in the event of her fault
The newly adopted statute imposes conditions on the spouse where, in violation of the provisions, she may be deprived of the right to property while applying for divorce.
Such conditions have led to a misconception among the general population of Nepal that if a spouse files for a divorce, she may not be entitled to property rights.
In fact, if the spouse (wife) commits physical or mental torture, he or she throws it out of the house; if the spouse (wife) has sexual intercourse outside the marriage and if it is established in the court of law, he or she loses the right to property. The spouse shall obtain property while filed for divorce after living separately from the other spouse for a period of three years.
3. Cooling period.
According to the National Civil Code of 1963, if the spouse filed a petition for divorce before the municipality, the application remained in the municipality for one year.
Prior to the newly adopted statute, the National Civil Code 2017, where the spouse (wife) filed an application for divorce before the municipality, then the application to proceed further took one year to observe whether the two spouses could resolve their differences and get back together.
With the adoption of a new statute, the National Civil Code 2017, where the spouses apply for a divorce without a mediation procedure, no decision will be taken for one year; that period shall be called a cooling period. The concept of the cooling period emerged from 17 August 2017. The new National Civil Code 2017 made mediation mandatory.
Previous to the newly adopted statute, mediation was not mandatory while applying for a divorce. When formulating a new statute, mediation is mandatory while filing for divorce.
After reviewing the divorce application, the judge sends the parties to the mediation to sort out their differences and resolve the issues through the mediation process. Interim Order for Maintenance
4. Interim Order for Maintenance
It is a legal order sought by the court seeking maintenance. It is also referred to as spousal support until the final order of divorce has been awarded.
If a petition is filed seeking an injunction order, the court may weigh the income of the spouse and, on the basis of the economic situation of the spouse, the court may grant an interim order for a monthly payment.
5. Provisions relating to serving summons without delay
When the National Civil Code was in effect, the notice of summons would take a long time to be served on the other party (husband or wife). With the creation of a new National Civil Code 2017, one of the parties to the lawsuit may give notice of the divorce petition to the other party.
Should you have any questions relating to divorce proceedings then please do not hesitate to contact us.
Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.
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