Thinley Namgay

In a growing trend, individuals without marriage certificates (MC) are sidestepping the courts, opting to finalise their divorces through legal firms or lawyers—often without the required court notarisation.

The Bar Council of Bhutan (BCB) and the Judiciary have advised against bypassing the courts in divorce proceedings.

In a public notification issued on September 11, the BCB highlighted the gravity of the issue, stressing, “It is essential that all legal procedures, especially in sensitive matters like divorce and settlements, are conducted in full compliance with the law.”

The BCB called on legal professionals to ensure their clients understand that divorce agreements signed at law firms are not legally final without proper court notarisation. They urged lawyers, paralegals, and law firms to guide clients through the correct legal procedures, warning that failure to do so could result in misunderstandings or misrepresentations.

The BCB further warned that non-compliance with legal procedures would lead to strict disciplinary action, including suspension or revocation of licenses to practice law. However, the council clarified that settling divorce cases outside the courtroom is not illegal, stating, “Parties can mutually agree to settle divorce matters outside the courtroom, provided they adhere to all applicable legal standards.”

The BCB emphasised that if a divorce is settled outside the court, any divorce deed or settlement intended for official purposes must be notarised by the court. Despite issuing this public notification, the BCB declined to offer any additional comments on the matter.

One practicing lawyer explained that the BCB’s notification primarily concerns the official use of divorce deeds, particularly for purposes like international travel. “The BCB noticed that some lawyers are not adequately informing clients about the need for court notarisation, causing them to believe these documents are final,” the lawyer said.

The lawyer further clarified that while the law permits divorce settlements outside of court for couples with a valid  MC, there is no legal provision allowing the MC itself to be canceled outside of court. “In fact, no clear law exists regarding how an MC can be canceled, except for a provision in the Marriage Act related to yigthik,” she added, suggesting the BCB’s intent is to ensure lawyers provide accurate information and adhere to lawful conduct.

Another lawyer expressed confusion over the BCB’s position on notarisation, stating, “If there is no MC, legal firms have been paying fines on behalf of the couple and getting court approval to settle the divorce outside of court.”

The Judiciary clarified that courts would be unable to accept a divorce settlement if disputes arise from an agreement settled without an MC. They stressed that court notarisation is essential in many situations, particularly when child custody is involved. “For instance, if child custody is part of a divorce agreement, court notarisation is required to present it in other countries,” the Judiciary explained.

The Judiciary further urged lawyers and legal firms to fully understand the provisions of the 1980 Marriage Act of Bhutan, which allows couples without an MC to settle their divorce outside of court under certain conditions.

Key sections of the Marriage Act, such as Kha 9-1, Kha 9-2, Kha 9-3, Kha 6-16, and Kha 8-28, outline the procedures and fines related to marriages without an MC.

Section Kha 9-1 states that couples without an MC seeking a divorce must apply to the court in the prescribed form. Only after paying fines, as stipulated in the subsections, can property division and other settlements proceed.

Subsection Ka specifies that if a divorce occurs within three years of a marriage without an MC, both parties must pay a fine of Nu 200 to the court.

Subsection Kha increases the fine to Nu 400 for divorces occurring within seven years of such a marriage. Subsection Ga mandates a fine of Nu 600 for divorces that take place after more than seven years of marriage without an MC.

These provisions highlight the structured legal process for divorces in marriages lacking official certification, underscoring the importance of proper court involvement and adherence to legal standards.