Binding Financial Agreement or Consent Orders?

More commonly known as “separation agreements”, BFAs are private agreements which provide for property distribution and spousal maintenance in the event of separation, which do not require approval of the court.

A consent order is a written agreement regarding property distribution, spousal maintenance and/or parenting arrangements, which is made after separation and approved by the court as just and equitable in the circumstances.

• Distribution of assets, liabilities and financial resources
• Superannuation entitlements
• Spousal maintenance
• Management of corporate entities, trusts and partnerships
• Inheritances, compensation payments and other windfalls

• Distribution of assets, liabilities and financial resources
• Superannuation entitlements
• Arrangements for the care of children
• Spousal maintenance
• Management of corporate entities, trusts and partnerships
• Inheritances, compensation payments and other windfalls

• Arrangements for the care of children
• Child support

• Child support

You make an application to the Court for an order that the agreement is valid. Once approved, the court will order your spouse to comply with the terms of the agreement. If your spouse does not comply with the court orders, you can seek enforcement orders and penalties for non-compliance.

The agreement has already been approved by the court, so if your spouse fails to comply, you can seek enforcement orders and penalties immediately.

In circumstances where documents must be signed as part of the orders (i.e. discharge of mortgage or transfer of property), the court can sign these on behalf of the non-complying party.

A court may set aside a BFA if it satisfied that:

• The agreement was obtained by fraud e.g. non-disclosure of a material matter
• The agreement is void, voidable or unenforceable e.g. the binding requirements were not fulfilled
• Circumstances have arisen since the agreement was made that make it impracticable for the agreement or part of the agreement to be carried out
• Since the agreement was made, a material change in circumstances that relate to the care, welfare and development of a child of the marriage has occurred
• A party to the agreement engaged in unconscionable conduct in the process of developing the financial agreement e.g. signing the agreement on the parties’ wedding day.

It is extremely difficult to have a consent orders overturned. However, if the court can be satisfied that there was a miscarriage of justice, the property settlement can be reopened.

The most likely grounds for a miscarriage of justice include:

• Fraud e.g. non-disclosure
• Duress e.g. signing on wedding day
• Suppression of evidence or giving of false evidence e.g. overseas bank account

Yes. One of the requirements to make the agreement “binding” is that each party must obtain independent legal advice from an appropriately qualified solicitor who is issues a certificate of independent legal advice.

No. You can file consent orders in the Family Court without obtaining legal advice. However, the Court is less likely to approve the orders where the parties have not obtained independent legal advice and you are more likely to agree to a settlement which is unfair or impractical.

The cost is largely dependent on the complexity of the proposed agreement and the agreeability of the parties.

We draft and review binding financial agreements on a fixed-fee basis which is agreed upon before commencement.

The cost is largely dependent on the complexity of the proposed agreement and the agreeability of the parties.

We draft and review consent orders on a fixed-fee basis which is agreed before commencement.