Question 46: Is there any regulation imposing on each spouse to hire a lawyer upholding his or her lawful rights or interests in a divorce case? Is it legally possible to hire more than one lawyer to defend the spouses? When does a lawyer have the right to commence entering into the settlement process of the case? What happens when there is a difference of opinion about the defense of one spouse among hired lawyers, which opinion shall be recognised by the Court?

  1. In a divorce case, does the law require each spouse to have a lawyer protecting their rights?

Hiring a lawyer to protect legal rights in a divorce case is the right of spouses or the persons with related interests and obligations. Whether or not the spouses can exercise this right, depending on their conditions, purposes and desires in the case. Therefore, it is not necessary to force one spouse in the divorce case to have a lawyer. In fact, the role of a lawyer in a divorce case is to protect the legal rights and interests of the spouses or an authorised representative in certain cases.

In practice, the spouses often hire lawyers, because lawyers are those who master the legal knowledge of the Law on Marriage and Family and have experience in civil proceedings, specialising in the field of law whose main job is to help clients ensure the best interests at the trial. Supporting the clients in legal proceedings requires lawyers to be firm in not only legal knowledge, but also many other skills, such as the ability to work efficiently and professionally with civil proceeding authorities, information-seeking skills, legal analysing thinking as well as legal means, methods to enforce judgements and other factors to best support and protect legal rights and interests for the clients.

2. The spouses can hire multiple lawyers to protect themselves with the same divorce case

The law does not limit the number of lawyers that a spouse can hire in a divorce case. Therefore, depending on the financial conditions, the complexity of the divorce case and its requirements, and the purpose of the spouses, the spouses have the right to hire more than one lawyers to protect the lawful rights of himself or herself in Court. A lawyer hired for each spouse is enough, both to save costs, and avoid conflicts, overlapping views, and problems of approach from different lawyers in case of hiring multiple lawyers at once. However, in complex cases, where the value of disputed properties is large and related to many technical matters, the spouses may hire multiple lawyers at the same time because each lawyer possesses specific strengths for each issue in the case so that they can complement each other as needed.

3. When is a lawyer entitled to participate in the case?

Unlike the Criminal Proceedings Law, the Civil Proceedings Law does not specify from what stage a lawyer is allowed to participate in the case. Therefore, in principle, a spouse may hire a lawyer at any stage of the divorce case, maybe before the commencement of the case by requesting the lawyer for initial advice until stages of first instance, appellate, cassation and reopening, even to the stage of execution of judgements. There is no obligation to hire a lawyer from start to finish (as well as a limit on whether a case must keep the chosen lawyer). In fact, the lawyers involved in the stage of the divorce case will depend on the needs of the spouses and the agreement between the spouses and the lawyers. For example, the spouses do not hire lawyers at the first instance trial, but they found it necessary and required at the appellate trial. Or, in the first instance and appellate trial, the lawyers are not hired, but in the cassation or reopening trial, they are required. Or, they hire two different lawyers at first instance and appellate trial.

4. If the defense arguments for the same lawyer are different, which lawyer will the Court recognise?

In principle, lawyers are the defenders of the spouses’ legitimate rights and interests and the opinions of lawyers are intended on behalf of the spouses to express their opinions and aspirations on the basis of comparing documents and evidence in the cases with the provisions of relevant laws. The spouses are entitled to supplement their opinions on the defense arguments of lawyers and even, if the spouses find that the content of a lawyer’s argument fails to protect their lawful rights and interests, they are entitled to request the Court to dismiss such protection. On the Court’s side, when considering that the issues presented by the lawyers to the spouses contradict each other, the Court will not immediately recognise the opinion of any lawyer but conduct the procedure to ask the plaintiffs, the defendants, the person with relevant rights and obligations, and the lawyers themselves to present their opinions to clarify the objective truths of the case, thereby deciding which lawyers’ arguments will be considered[2].

[2] Articles 249, 250, 251, 252 of the Civil Proceedings Code 2015.

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