While you and your spouse may have decided that you are at the stage where your marriage is beyond help and divorce is inevitable, you may have a legal obligation to have marriage counselling before you can file for divorce. When does this rule apply and how can you get around if it if counselling is not an option?
How Long Have You Been Married?
Under Australian family law, couples who want to divorce after a short marriage have to try marriage counselling before they can submit an application. This may apply to you if you want to divorce within two years of getting married; if you've been married for longer than two years, you aren't required to have counselling.
Typically, you need to see an approved counsellor or mediator who has the authority to sign a certificate that you have attended a relationship counselling session. This form is then submitted with your divorce papers. While courts require counselling in most cases, there are times when you may be able to file for divorce without mediation if you can prove a viable reason not to have counselling.
Do You Have a Reason Not to Have Counselling?
In some cases, people can't have couples' counselling. For example, if you have lost touch with your spouse, have tried to locate them but can't find them, then you may be able to waive counselling on the basis you've done your best to get in touch but have failed.
Sometimes, people simply refuse to have counselling or don't want to have mediation because of safety issues. For example, if your spouse was abusive, you may not feel that it is appropriate to have to go through counselling.
Tip: If you have safety concerns and don't want to sit in the same room as your partner for joint counselling, you should be able to arrange for a counsellor to see you both separately. This will fulfil your counselling obligations while protecting your safety.
How Do You File for Divorce Without Counselling?
If you're willing to have counselling yourself but your spouse won't attend, you may be able to go to a session and ask the mediator to record on your form that your spouse would not attend the session.
Alternatively, if neither of you are willing to have counselling or can't arrange it, you can file an affidavit when you submit your divorce application. You'll need to state the reasons why the two of you won't or can't have counselling. For example, if you tried to arrange counselling sessions, but your spouse refused to attend, you should explain this in the affidavit.
If marriage counselling is not an option for you and you don't want to file an affidavit, then you may simply find it easier to wait until you've been married for more than two years before you divorce. However, it's also worth thinking about counselling, even if you think that your marriage is over. Talking to an independent third party may help you resolve problems; even if you can't sort things out, a counselling session may give you closure by making sure that you've done everything you can before you proceed with your divorce.