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Marriage, Divorce and Lawyers Role

February 26, 2012

Advocate as a profession is having many authorities and responsibilities attached to it. You have many privileges. But when it comes to disputes in the marriages, the "Divorce Lawyers" are most sought after. Have you heard about a Marriage Lawyer in India? The answer will be most probably no (except the lawyers are consulted when the couples elope for marriage). Lawyers are not consulted for Marriages they are only consulted for facilitation or registration of marriage. The marriage is a leap of faith, No one knows which one will be success or a failure. This can never be known. In fact all want it to be successful and no one wants it to fail, and more over it being a sacrosanct sacrament and not a contract in Hindus, it cannot be negotiated in a manner which you negotiate a contract. There cannot be a clause of termination, compensation, Force Majeure, Arbitration or other such clauses that you have in a civil contract. The success and the terms and condition of marriage is only for the couple to decide and to some extent the families involved.

The role of Lawyers usually come in when there are disputes, and this is when people search for Divorce Lawyers. The prefix 'Divorce' in my humble opinion have given a negative tint to the profession. Why would I like my self to be called a villain? Why would I like to be referred to as a reason for Divorce? Why? The Lawyers should see that they are not attributed with such prefixes. 

So what should be a role of a lawyer when they receive a matter in which there is some dispute in marriage.

  1. Tell your client that you are not a Divorce Lawyer. Yes. Its very important that you make it clear to your client that you are not a Divorce Lawyer, but you are a Family Lawyer and its simply that divorce is one of the least preferable option in a matrimonial dispute.
  2. Try to Counsel your client and try to know the actual cause of the problem and then if, in your opinion,there is any fault of your client be very frank with that aspect. Its not about doing what your client says you to do. Its about doing what you think is right in the interest of your client and the whole of legal system.
  3. Try to initiate conciliation proceedings on behalf of your client. Try to find out some person who can work as a catalyst in supporting the conciliation. This you can know from talking to your client. In case you cannot find any catalyst you may advise client to take help of some mediation center or some marriage counselor to act as a catalyst in the issue.
  4. If you find that litigation is only option, don't hush up for criminal litigation. Try some civil remedy unless the case warrants a criminal action. Criminal Action is provided in our legal system for use in cases where actually there is violence or cruelty. Most of the cases the violence is only alleged because the relatives of your client advised to allege cruelty, and you will be able to make out this when you counsel your client.
  5. The civil remedies leave a door open for the partners in marriage to reunite whereas in criminal action the dignity and ego of the other partner is hurt to an extent that reunion becomes almost impossible. Don't do just what your client says, instead work in your clients best interest because it is you who are a professional and can judge what is in the best interest of your client.
  6. Then if any thing does not work out and if you feel that it is in the best interest of your client and clients' partner that they get separated, you may advise for judicial separation or divorce as may be required in the case. Try that this also happens with mutual consent so that no enmity remains between the partners when they separate.

Remember friends, the role of the Lawyers in Family Disputes is not just important for them or their clients but is also important for the society at large. Lawyers should be facilitators to their clients to sort their disputes in a positive and creative manner. Lawyers should not be just Divorce Lawyers who immediately come to conclusion that the Divorce is what their client needs when the client is still confused as to what he/she wants.  Lawyers can make or break, it all depends on their creativity and their determination to deal with such cases in a positive manner. Friends, I have seen people crying after divorce. I have talked to them and found that it was not at all the divorce that they wanted when they went to their lawyer. So, Please first assess what your client wants from you and don't just become 'Divorce Lawyers'.  The Family issues are such which are not simplistic legal issues, they are emotional issues and they are more domestic than to be fought in the courts of law. 

Be a Family Lawyer and not a Divorce Lawyer. Be a Counselor and not a Divorce Lawyer doing what your client "wants". Because this "want" , believe me in most of the times is momentary and out of rage. If you give up to the momentary psychological condition of your client then you would be blamed for not doing your job right. 

I shared what I could learn from my experiences in life and profession and this is not purported to be a legal or professional advise. 

 

Punit B. Juneja

Juneja Legal

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