Is it necessary to appoint a Lawyer in a Divorce proceeding?
Divorce proceedings in India are carried out in accordance with the Family Courts Act, 1984. The Family Court Rules governing the proceedings in these courts is framed by the High Court exercising control over the Family Court. In areas where Family Courts have not been constituted, the proceedings are carried out in accordance with the Rules framed by the relevant High Court and the Code of Civil Procedure. None of these laws make it mandatory for the person appearing in divorce proceedings to engage a lawyer. However, it is possible that certain complications arise during the proceedings, in which case the presence of a lawyer would prove beneficial. A few examples of such situations will be explained further.
In India, divorces are governed by different laws depending on which religious community the parties belong to. Broadly, divorces fall into two categories:
i) Divorce by mutual consent
ii) Contested divorce
In either case, there may be situations where engaging a lawyer can prove advantageous.
Divorce by mutual consent
Under this category of divorce proceedings, both parties to the marriage jointly present a petition for the dissolution of marriage to the Court. The parties arrive at a settlement on a number of issues including the return of streedhan, division of finances and assets, agreement over maintenance/alimony, custody of children and sharing of litigation costs. The divorce petition submitted before the Court encapsulates these terms. Taking the assistance of a lawyer for drafting this agreement may prove beneficial, as a lawyer will ensure that all relevant components have been included, thereby plugging all loopholes prevent any disagreements in the future.
In such divorce proceedings, either party may present a petition in court for the dissolution of marriage on the grounds such as adultery, cruelty, desertion, incurable mental disorders, sexually transmitted diseases in communicable form and renunciation of the world on religious grounds. The party that has filed the petition will have to prove these allegations with evidence and documents. On successfully, proving the case, divorce is granted. Contested divorces are potentially long-winded processes, and it possible that the pleadings may become complicated. In such cases, there must be clarity as to what evidence, whether oral or documentary may be presented in court, the cross-examination process and the necessity of re-examination. Ordinarily, these processes are dealt with by lawyers and the unfamiliarity with these procedures could potentially disadvantage a party who has not engaged a lawyer, especially when the opposing party is being represented by a lawyer.
Therefore, the presence of a lawyer is not required by law but practically it is always better to have a lawyer at your side to take care of all possible aspects associated with a divorce proceeding.