Consent Orders vs Binding Financial Agreements: Which Do You Need?

Reaching an agreement with your former partner is the hard part — but an informal agreement, even one in writing, is generally not binding and leaves both of you exposed to a later claim. Australian family law offers two ways to make a property settlement final: consent orders and a binding financial agreement (BFA).

What Are Consent Orders?

Consent orders are court orders made by agreement. You file an Application for Consent Orders with the Federal Circuit and Family Court together with the terms you have agreed; a Registrar reviews the proposed property division to check it is just and equitable (and, for parenting orders, in the children's best interests) and, if satisfied, makes the orders — no hearing, no court attendance.

• Court-approved, so they carry the strength and enforceability of any court order
• Can cover property, superannuation splitting and parenting in one process
• Lower cost than a BFA in most straightforward cases
• The court checks fairness — protection for both parties

What Is a Binding Financial Agreement?

A BFA is a private contract under the Family Law Act that excludes the court's power to divide your property. It can be made before, during or after a relationship (the classic "prenup" is one type). There is no court scrutiny — which is precisely why the law requires each party to receive independent legal advice, with signed solicitor certificates, for the agreement to bind.

• No fairness review — parties can agree to terms a court might not have ordered
• Can be made while the relationship is intact (consent orders generally cannot)
• Strict technical requirements — poorly drafted BFAs are notoriously vulnerable to being set aside
• Usually costs more, because both sides need their own solicitor

Which One Should We Use?

For most separated couples who have reached agreement, consent orders are the safer, cheaper and more robust choice. A BFA earns its place where the parties want an outcome the court might not approve, want to deal with property before separation (for example, protecting pre-relationship assets), or want spousal maintenance dealt with in ways orders cannot. Many couples use both: consent orders for property and parenting, and a BFA for maintenance.

Do Time Limits Apply?

Yes — an application for property orders (including consent orders) must generally be made within 12 months of a divorce order, or 2 years of a de facto separation. Read our guide to family law time limits, and formalise your agreement before the window closes.

General information only, not legal advice.

Need legal advice? James Papas Solicitors offers free first consultations for all Family Law matters. Our offices are in Parramatta and we serve all of Western Sydney. Learn more about our Family Law services → or contact us today.