Do I need to appear in the court since I already have an attorney representing me in the divorce litigation?
Generally speaking, if a party hired an attorney in the civil litigation, this party is not required to appear in the court as the attorney can represent him or her, but the divorce case is different from other civil cases, the parties must show up during the hearing unless he or she cannot express himself or herself according to marriage laws. Article 62 of the China Civil Procedure Law reads: “For a divorce case, even the party has an attorney to represent him or her, the party shall still appear at the hearing unless he/she cannot express himself or herself, If the party is unable to appear in court because of special circumstances, he/she must submit a written opinion letter to the people's court.”.
According to China's Marriage Law, whether the divorce decree shall be granted is depending on the finding of marriage breakdown. A lawyer cannot give an opinion whether the marriage is a breakdown, only the parties themselves can give their opinion whether their marriage is irretrievably broken down. Such reason constitutes the ground of the law requiring the parties themselves to appear in court even they are represented by attorneys.
There are also some exceptions to this rule, for example, the party cannot express himself or herself and other subjective reasons that the party cannot appear in the court, in the case where the party cannot appear in the court, this party shall submit a writing letter to the court to illustrate his or her opinion on divorce.
Special circumstances of certain cases where the party may not join the hearing include situations where the party is mentally ill and cannot correctly express his or her own will which makes it meaningless for such party to appear in court, situation where the party is suffering from an infectious disease and situation where the party is in a foreign country.
For the party who cannot express his/her will, he/she may not appear in court or submit his/her written opinion regarding divorce. For those who cannot appear due to special circumstances other than mental illness, the party must submit a written opinion on whether to consent to divorce to the People's Court.