Can I Trust My Husband/wife’s Advocate For Filing A Joint Petition Seeking Mutual Divorce?

Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. The advocates are duty bound to uphold the interest of his/her client by all fair means. The advocates are governed by Bar Council of India Rules to maintain professional standards and in case of any, misrepresentation to the client or misconduct on the part of an advocate, which is adverse to the interest of his/her client, the advocate shall be liable for proceedings under Section 35 (1) of the Advocate Act, 1961.

Usually, a joint petition of Divorce is filed before the Family Courts by the husband and wife through their respective advocates. However, there is no bar, if the said joint petition is filed by one advocate appointed by both husband and wife. In contested cases, there cannot be one advocate from both sides, however, the Mutual Divorce Petition being uncontested petition and hence, can be filed by one advocate appointed by both husband and wife.

Firstly, the joint petition seeking divorce by the parties is signed in the presence of the advocate appointed by the parties. It is advisable to take a copy of the signed petition from the advocate so that, in case, there is any discrepancy in the terms settled between the parties and the terms stated in the petition, the parties can bring the same to the knowledge of their advocate or concerned Family Court Judge at the time of recording of their statement at the time of first appearance/first motion.

Secondly, the copy of the statement recorded before the concerned Court is given to the parties for signing which states the terms and conditions of the settlement, total amount settled, amount received, balance amount to be paid/received, mode of payment, child custody rights, child meeting rights etc. The parties are advised to read the statement carefully and thereafter, sign the same, as after signing the statement before the court, the parties cannot rescind from their statement. (The recording of the statements take place in the courts and the same becomes part of record in the said matter).

The appointment of one advocate by both husband and wife will definitely save money and time for the parties. However, if your advocate is reluctant to incorporate any of your terms in the settlement agreement or the Mutual Divorce Petition, in that case, you should appoint another advocate so as to curtail any future issue.

Vikram Kumar

Advocate

The above information is based on personal experience of the Advocate and no part of this should be construed as providing legal advice for any purpose.