If the man in the street asks what are the duties of a lawyer towards a divorcing party or a party who would like a divorce, one will probably answer that it is to assist the said party in all the legal procedures a divorce would entail. This might even seem a ridiculous question to ask but, whether ridiculous or not, our legislators deemed it fit to map out in the Civil Code the lawyers’ duties with regard to divorce. Why was the need felt to include such provisions? Were they really necessary? And why were similar provisions not included in all branches of law, that is, why were they set specifically for divorce?
First of all, we must discuss what was included in the Civil Code. There are two sets of duties: the duties of the lawyer towards the applicant and the duties of the lawyer towards the respondent.
The first set of duties provide for the lawyer, in case where the parties are not yet legally separated, to discuss the possibility of reconciliation and to provide the applicant with names of qualified persons in helping to reconcile the parties such as the names of family therapists and marriage councillors.
Another duty is to make sure that the would-be applicant knows that there is the option of personal separation.
Why did the legislators feel the need to put in such a requirement? And, moreover, to put it in the Civil Code?
If one is going to apply for divorce the parties must either be legally separated for four years or have been living separately (that is, de facto separated) for four years. Therefore, one might ask: Isn’t reconciliation a tad too late? It depends. I have come across cases where couples were on the verge of separating but subsequently reconciled.
But if the couple had been separated for four years and one of them is seeking a divorce, then the situation is already precarious. It would have been much more useful if such a provision had been included in the separation proceedings because at separation stage there is a greater chance of reconciliation than at the stage when the couple is on the verge of getting a divorce. This is because for a divorce, the couple must have already been separated for four years whereas, most of the time, couples seeking a legal separation wouldn’t have been already living separately, hence, the chances of reconciliation at that stage are much greater.
However, again, why the need to legislate and then why restrict it to divorce cases only? Shouldn’t this be part of the legal ethics of each and every lawyer to ask the would-be applicant whether there is any hope of reconciliation and to provide them with the suitable contacts to seek professional counselling? Moreover, when the applicant decides to get a divorce, the lawyer needs to file a note stating that the said advocate abided by the duties in informing the applicant of such possibilities. This is already part and parcel of a lawyer’s duty to advice his or her client. So was it necessary to legislate?
What about the duties of the lawyer towards the respondent? They are basically the same as those of the applicant’s lawyer, except that the duty to inform the respondent of the option of legal separation is not included. Which brings us to the second bit of the legislation, that is, to make the applicant aware that there is the option of separation.
Separation and divorce are two entirely different matters, so when, in article 66G (1)(b), there is written the term “option” it causes some sort of confusion. When one uses the term “option” one presumes that there are two similar choices to choose from and not two totally different choices because then there really isn’t any option at all. If the intention of the applicant is to remarry then legal separation is really not an option at all! And, presumably, if whoever is seeking a divorce has the intention to remarry then legal separation does not come into the equation at all!
Civil annulment, on the other hand, is much more similar to divorce than a separation. If one is seeking to remarry within the Church, then a Church annulment is the only option for him/her because with a divorce one can only remarry civilly. But let’s say the applicant does not have any intention of getting married within the Church, then the only real option apart from divorce is a civil annulment. Why? Both with divorce and with civil annulment one can get married whereas with a separation, one cannot remarry.
Obviously, with divorce one is stating that there has been a valid marriage and with an annulment one is declaring that such marriage is null and void because it never existed legally due to particular grounds. And, in reality, couples who have been separated for less than four years cannot divorce and their only option, if one of them is seeking to get married, is annulment.
Dr Mangion is a lawyer and a published author with a special interest in family and child law.