Recognition of foreign divorce

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Recognition of divorce taken in a foreign country in Nepal

Human life has become very movable now in recent times because of global unification. The world has become much smaller and many people travel to reside in another country. They marry in a different country and eventually decide to divorce in another country. Nepal has also been touched by this changing tradition and culture. Many Nepalese travel to a foreign country, marry the girl they love and may eventually decide to take divorce in a country other than Nepal. In such a condition, the Government of Nepal has decided to recognize and authorize the divorce taken in a foreign country.

Arrangement and Legislation in Nepal for recognition of divorce taken in a foreign country

Article 706 of the Civil Code 2017 has recognized the divorce taken in a foreign country. If the relationship between two Nepali citizens or between a Nepali citizen and a foreigner is severed in accordance with the law of the country in which divorce is taken. Such a divorce shall be recognized in accordance with the law of Nepal and may be implemented as well. Usually, a decision made in one country is recognized in another country, it is also necessary for the Sanctity of Judgment. Nepal has also ratified The Hague Convention of 1968 on the recognition of divorce and Legal Separations to bring uniformity in marriage decisions. According to section 10 of The Hague Convention, a divorce made abroad is invalid only if it violates the Public Policy. Thus, decisions that are not contrary to the Public Policy have to be recognized and implemented in accordance with the law and on the basis of Reciprocity, Comity.

If the marital relationship ends through a divorce in one country, then it will be valid in whichever country you go to. It doesn’t mean that the marital relationship will be recreated in another country. Once the marital relationship is ended by divorce in whichever country you are, then it is permanent. Your divorce will be recognized and authorized wherever you go. According to Res Judicata (Issue Estoppel), after a divorce and resolving the disputes by the court of one country. Then the same issue cannot be raised again in another country.

International law applies to the conditions under which a decision made by a foreign court is recognized. Decisions made by a court in one country seem to be based on reciprocity, committee / public policy in relation to recognition and implementation in another country. Different bases are determined in that regard. The major of which are as follows:

• There should be the jurisdiction of foreign courts
• The decision should not have been fraudulent
• The decision should not be contrary to the public policy
• Judgment should not be against the principle of natural justice
• The decision should be final
• Courts should be independent and impartial.

What to do in Nepal if you have taken a divorce in a foreign country?

If you as Nepali citizens have taken divorce in a foreign country, then you have to follow a small procedure for your divorce to be recognized in Nepal. Here’s what you have to do if you have come to Nepal after taking a divorce in a foreign country:

According to Sub Section 1 of Section 4(2) of Birth, Death, and Other Personal Incidents (Registration) Act, 2033, if personal incidents have happened in a foreign country. And the person has come back to Nepal, then the person has to give notice within 60 days from the date of his arrival in Nepal. The person has to give the notice of his divorce along with the divorce judgment letter that has been issued by the court of the foreign country to the respective ward office of the municipality.

Nepal’s Supreme Court has set the following precedent for recognizing the divorce taken in the foreign country

1. Mrs. Vicky Sherpa alias Maria Victoria Suvirana Rotriguez against Immigration Department Ne. Ka. Pa. 2067 Decision no. 8505

In it, a foreign woman marries a Nepali citizen. They also have two children from their marriage. They then take a divorce from the Spanish court. After their divorce in Spain, her husband who is Nepali Citizen by birth file a petition in the Nepalese Immigration Department to revoke their marriage and family visa. Immigration Department of Nepal revokes their family visa. His foreign wife files a writ petition in the Supreme Court against the rejection of their family visa. The Supreme Court has given the following explanation:

Since the foreign wife has filed a case for her property share on her husband’s property and the case is at the pending state in the respective district court. In such a situation, the foreign wife can’t stay in Nepal and fight for the case with the family Visa. She has to have the arrangements that she had before she got married and got the family Visa in Nepal. In simple words, the foreign woman may have visited Nepal with Visit Visa in her hand but got married with the Nepali citizen. thereafter, she got the family Visa to stay in Nepal. But after getting a divorce in Spain, their divorce is also authorized in Nepal. therefore, her family Visa is cancelled. Since she has also filed for property share in the district court of Nepal, she can stay in Nepal with the Visit Visa she had before her marriage.

2. Dr. Pushkar Raj Pandey verses Savina Pandey under Ne. Ka. Pa 2068 Ni. Na. 8572

Savina Pandey and Dr. Pushkaraj Pandey were married on 2053.8.28 in Kathmandu. After the marriage, the husband and wife went to the United States. After her husband ignored her, Savina Pandey lived in the place where her brother lived. Meanwhile, her husband filed for divorce in the Pontotech County District Court in Oklahoma. Their divorce was granted by the same court in Oklahoma. However, the wife filed a case in the Nepal court for property share. Therefore, the Supreme Court of Nepal decided that though their divorce has been finalized in the United States, but the wife has the right on the property share of her husband. 

Your Question on foreign divorce and property 

1. If a divorce order is sought in foreign country, it will not stop/prevent to

initiate the property proceeding in Nepal?

Answer: However, as per Nepali law; Article 99 of CIVIL CODE 2017 mandatorily requires to allocate a portion of property prior to a divorce process. This is an obligatory requirement. Also to inform you that Article 706 of the NATIONAL CIVIL CODE 2017 has recognized the divorce obtained in a foreign country. In the light of division of property in a foreign land is guided by its Municipal Law and that cannot have impact in Nepal to acquire property in Nepal. As per Nepali Law Section 707 of the NATIONAL CIVIL CODE 2017 reports that property remained in Nepal shall be divided as per Nepali law. The property owned by Nepali in Nepal shall be divided as per Section 707 of the National CIVIL CODE 2017. Having said that the ancestral property is the property that is inherited by the husband from his father, grandfather and great grandfather and as per Nepali law wife is entitled to that property.

2. If a divorce order is made in foreign country and husband subsequently remarries, this may affect the property proceedings in Nepal because the property to be divided may be diluted as it may also be divided with his new wife.

Answer: The husband can only be eligible to remarry after taking the share of the property from the spouse and living apart. In order to remarry the ongoing property case in Nepal. The case of Nepal must be settled and that land MUST be divided.

3. If property settlement proceedings are filed in foreign country, this will likely affect the property proceedings in Nepal.

Answer: As per PRIVATE INTERNATIONAL LAW the property remained in foreign country, and Nepal is guided by its respective countries law. And as per Nepali law the respective countries law is applicable in respect to property remaining in each country. The law of foreign country, is followed while obtaining property there. Her property rights cannot be dismissed because of her obtaining property in Australia. In light of property in Nepal; the property owned by a Nepali in Nepal shall be divided as per Section 707 of the NATIONAL CIVIL CODE 2017;he/  she is entitled to property right following the provision contained in Section 707 of the said code.

Conclusion

One of the most important legal questions is whether to give recognition and authorization to the decision made by the foreign court. Because of sovereignty, each nation is considered sovereign within its own territory. Each nation has the right over the decision making of its citizen, their property. The nation has taken exclusive jurisdiction. No country enforces foreign laws in their country other than its own. But even if such exclusive jurisdiction was possible in the past, it is not possible in today’s interdependent world. So today’s nations cannot ignore foreign laws and foreign court rulings in the name of Territorial Sovereignty. It has been decided that the decisions that are not against the Public Policy should be recognized and implemented on the basis of Reciprocity and Comity.