What you need to know about the difference between consent orders and binding financial agreements
If you are looking to finalise property or parenting arrangements after separation, you may come across two commonly used pathways: Application for Consent Orders and Binding Financial Agreements. Understanding the differences between these options can help you choose what’s right for your situation.
What Are Consent Orders?
Consent Orders are agreements about property, parenting, or both, that are filed with the Family Court for approval. The Court will only approve orders that are fair, just, and in the best interests of any children involved. Once approved, Consent Orders become legally binding and enforceable just like any Court order.
Key points:
Court approval is required, providing a layer of protection and fairness.
Suitable for property division, superannuation splitting, spousal maintenance, and parenting arrangements (not child maintenance, which is handled separately).
Requires full financial disclosure and may involve legal representatives, but you don’t have to have a lawyer.
Enforceable and recognised by the Court.
What Is a Binding Financial Agreement (BFA)?
A Binding Financial Agreement is a private contract between separating parties that sets out how property, financial resources, and spousal maintenance will be managed. BFAs do not need to be filed with or approved by the Court. However, to be legally binding, both parties must receive independent legal advice, and their lawyers must sign certificates confirming this. BFA do not cover matters relating to the children or parenting arrangements between the parties.
Key points:
No Court involvement—parties agree privately.
Must meet strict legal requirements, including independent legal advice.
Can be made before, during, or after a marriage or de facto relationship.
Greater privacy and flexibility but can be easier to challenge or set aside (e.g., for fraud, non-disclosure, or unfairness).
Not scrutinised by a judge for fairness.
Which Should You Choose?
Consent Orders provide the security of Court approval, ensuring fairness and enforceability.
BFAs offer privacy and flexibility, but enforcement can sometimes be more complex and there is more risk of legal challenge.
Every family situation is unique. Getting independent legal advice can help you decide which approach will best protect your interests and those of your family.
This article is general information only and does not constitute legal advice. For personalised assistance, contact our office to discuss your needs with an experienced family law professional.
