How to file Divorce via Power of Attorney

Last Updated at: May 21, 2020
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How to file divorce via Power of Attorney - Everything you need to know
How to file divorce through power of attorney
Generally, a power of attorney does not provide an attorney-in-fact with the legal ability to file documents in court, such as in divorce proceedings, or to initiate court actions. However, a principal can insert a clause into his power of attorney document stating the power will not terminate upon mental incapacity.

 

Divorce is a legal termination of a marriage. In India, the cases of divorce are generally managed by the personal laws of different religions. 

Types of Divorces in India

There are two ways of securing a divorce in India:

  1. Divorce by Mutual Consent: This is the case where both the spouses are willing to terminate the marriage. In this case, generally, a petition is filed, the terms of which is agreed by both the spouses.
  2. Divorce without Mutual Consent: This is the case of a contested divorce where only one of the parties is willing to terminate the marriage. There are certain grounds on which such a divorce is effectuated. Apart from these grounds, divorce can only be obtained by way of mutual consent.

In Divorce by Mutual Consent, the same can either be effectuated via the parties personally (in their physical presence) or by way of authorizing Power of Attorney. The latter case comes into place, generally comes into play when one of the parties is not able to be present at the proceeding. This could be due to various reasons, for instance, if the person is not physically present in the country, he might want to effectuate a divorce via this method. However this rule doesn’t have universal applicability, in cases where the presence of the person himself is desirous for evidence substantial to the proceeding, this method doesn’t work. There is not much of a difference in filing a normal divorce petition and filing one via power of attorney. In the latter, however, you first need to file a Power of Attorney, authorizing someone else to present on your behalf. 

Get legal guidance on marriage

 Stepwise procedure on filing a Power of Attorney

  1. While you are present in India, but planning to leave: 

Step 1: Filing for a Power of Attorney

A power of attorney for divorce can be filed either if you are planning to leave the country or you are already out of the country. If you are planning to leave the country, write down the terms of POA [Simple POA] on a 100 Rupees Stamp Paper.

Step 2: Visit the Office of the Registrar

Depending upon where you are residing, go to the office of the registrar or the office of sub-registrar in your residence. Apart from the POA holder (to whom the POA is being transferred), this process requires you to have two witnesses, who are physically present. The witnesses could be anyone from your friend or family.

Step 3: Supporting Documents

While you and the witnesses present before the Registrar, make sure you carry the following documents self-attested:

  1. An Address Proof
  2. Aadhar Card

As there are no published documents for this process, it is best to carry all government documents that you have, in original and at least two photocopies. The normal process requires the 

Step 4: Concluding Formalities

The registrar is supposed to click a photo of you, the POA holder and the witnesses. Once the process is complete, the Registrar keeps a copy of the POA for records and provides one to you with a registered stamp (Registered Power of Attorney).

b) Not present in POA; NRI with Indian Passport-

However, if you are not physically present in India, the simple POA is to be attested by the Indian Embassy or Consulate in your residence. The Embassy will sign it and send it to the POA holder in India, via registered post. Once received, the POA holder is required to visit the office of the Sub-Divisional Magistrate with the documents. The POA holder should carry the following documents with himself:

  1. An Affidavit of Rs.100 with the POA holder’s swearing of his identity. This might require nominal stamp duty.
  2. The Envelope in which the POA has arrived from the Embassy.
  3. Passport Photocopies of the Executant.
  4. Documents to prove the relationship between the POA Executant and the POA Holder.

It generally takes up to 15 days to process the POA. Once stamped by the SDM, it becomes a registered POA.

Kinds of POA

Depending on the amount of authority given, there are two kinds of POA:

  • Nondurable Power of Attorney
  • Durable Power of Attorney

1. Nondurable Power of Attorney

It is a nondurable POA when only the agent is provided only limited acting authority.  It lasts only for a specified period. Here, the principal is the person who grants a power of attorney. The person receiving the same is known as an agent. The nondurable POA can be revoked at any time for any reason the principal finds fit. It can also be terminated when the principal is proven unfit This case, the agent will not be eligible to act on the already invalidated principal’s behalf.

There are various possible reasons for a principal to create a nondurable POA. There is a need for an agent to appear for a court hearing or handle documents during various scenarios. For example, principal being out of town between a divorce process, or not doing very well physically etc. A principal can create a nondurable POA for a wide range of purposes.

2. Durable Power of Attorney

On the other hand, a durable power of attorney is broader with unlimited authority. It is effective even when the principal becomes incompetent or unfit to manage their affairs. Usually, a divorce case won’t need a durable POA. 

In most cases, it is mandatory to mention that POA is durable to avoid letting it become a nondurable POA by default.

 

There are also two types of Power of Attorney depending on the time of commencement. 

  1. Immediate – When a principal appoints the agent and the POA is effective immediately.
  2. Springing – A springing Power of Attorney is one which becomes effective only after the principal is proven out-of-action.

 

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How to file Divorce via Power of Attorney

3580
Generally, a power of attorney does not provide an attorney-in-fact with the legal ability to file documents in court, such as in divorce proceedings, or to initiate court actions. However, a principal can insert a clause into his power of attorney document stating the power will not terminate upon mental incapacity.

 

Divorce is a legal termination of a marriage. In India, the cases of divorce are generally managed by the personal laws of different religions. 

Types of Divorces in India

There are two ways of securing a divorce in India:

  1. Divorce by Mutual Consent: This is the case where both the spouses are willing to terminate the marriage. In this case, generally, a petition is filed, the terms of which is agreed by both the spouses.
  2. Divorce without Mutual Consent: This is the case of a contested divorce where only one of the parties is willing to terminate the marriage. There are certain grounds on which such a divorce is effectuated. Apart from these grounds, divorce can only be obtained by way of mutual consent.

In Divorce by Mutual Consent, the same can either be effectuated via the parties personally (in their physical presence) or by way of authorizing Power of Attorney. The latter case comes into place, generally comes into play when one of the parties is not able to be present at the proceeding. This could be due to various reasons, for instance, if the person is not physically present in the country, he might want to effectuate a divorce via this method. However this rule doesn’t have universal applicability, in cases where the presence of the person himself is desirous for evidence substantial to the proceeding, this method doesn’t work. There is not much of a difference in filing a normal divorce petition and filing one via power of attorney. In the latter, however, you first need to file a Power of Attorney, authorizing someone else to present on your behalf. 

Get legal guidance on marriage

 Stepwise procedure on filing a Power of Attorney

  1. While you are present in India, but planning to leave: 

Step 1: Filing for a Power of Attorney

A power of attorney for divorce can be filed either if you are planning to leave the country or you are already out of the country. If you are planning to leave the country, write down the terms of POA [Simple POA] on a 100 Rupees Stamp Paper.

Step 2: Visit the Office of the Registrar

Depending upon where you are residing, go to the office of the registrar or the office of sub-registrar in your residence. Apart from the POA holder (to whom the POA is being transferred), this process requires you to have two witnesses, who are physically present. The witnesses could be anyone from your friend or family.

Step 3: Supporting Documents

While you and the witnesses present before the Registrar, make sure you carry the following documents self-attested:

  1. An Address Proof
  2. Aadhar Card

As there are no published documents for this process, it is best to carry all government documents that you have, in original and at least two photocopies. The normal process requires the 

Step 4: Concluding Formalities

The registrar is supposed to click a photo of you, the POA holder and the witnesses. Once the process is complete, the Registrar keeps a copy of the POA for records and provides one to you with a registered stamp (Registered Power of Attorney).

b) Not present in POA; NRI with Indian Passport-

However, if you are not physically present in India, the simple POA is to be attested by the Indian Embassy or Consulate in your residence. The Embassy will sign it and send it to the POA holder in India, via registered post. Once received, the POA holder is required to visit the office of the Sub-Divisional Magistrate with the documents. The POA holder should carry the following documents with himself:

  1. An Affidavit of Rs.100 with the POA holder’s swearing of his identity. This might require nominal stamp duty.
  2. The Envelope in which the POA has arrived from the Embassy.
  3. Passport Photocopies of the Executant.
  4. Documents to prove the relationship between the POA Executant and the POA Holder.

It generally takes up to 15 days to process the POA. Once stamped by the SDM, it becomes a registered POA.

Kinds of POA

Depending on the amount of authority given, there are two kinds of POA:

  • Nondurable Power of Attorney
  • Durable Power of Attorney

1. Nondurable Power of Attorney

It is a nondurable POA when only the agent is provided only limited acting authority.  It lasts only for a specified period. Here, the principal is the person who grants a power of attorney. The person receiving the same is known as an agent. The nondurable POA can be revoked at any time for any reason the principal finds fit. It can also be terminated when the principal is proven unfit This case, the agent will not be eligible to act on the already invalidated principal’s behalf.

There are various possible reasons for a principal to create a nondurable POA. There is a need for an agent to appear for a court hearing or handle documents during various scenarios. For example, principal being out of town between a divorce process, or not doing very well physically etc. A principal can create a nondurable POA for a wide range of purposes.

2. Durable Power of Attorney

On the other hand, a durable power of attorney is broader with unlimited authority. It is effective even when the principal becomes incompetent or unfit to manage their affairs. Usually, a divorce case won’t need a durable POA. 

In most cases, it is mandatory to mention that POA is durable to avoid letting it become a nondurable POA by default.

 

There are also two types of Power of Attorney depending on the time of commencement. 

  1. Immediate – When a principal appoints the agent and the POA is effective immediately.
  2. Springing – A springing Power of Attorney is one which becomes effective only after the principal is proven out-of-action.

 

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