Consent Orders vs Binding Financial Agreements: Which Is Right for Me?
Both Consent Orders and Binding Financial Agreements can finalise property settlement after separation. Here's how they differ and which may suit your situation.
Consent Orders
Consent Orders are made by application to the Federal Circuit and Family Court of Australia. The Court will make Consent Orders when it is satisfied that the orders are “just and equitable”—that is, fair to both parties, taking into account their circumstances.
Once Consent Orders are made, they are binding on the parties and cannot be overturned except where there has been misrepresentation of assets or fraud.
Consent Orders are generally easier to enforce, as the Court considers a failure to comply with a Court Order to be a serious breach and will readily make enforcement orders.
Binding Financial Agreements
Binding Financial Agreements (BFAs) set out how both parties would like to deal with their property following separation. They can be entered into before the relationship, during the relationship, or after separation.
In order to be legally binding and enforceable, a BFA must comply with the strict rules of the Family Law Act 1975, including a requirement that both parties receive independent legal advice.
Which option is more suitable for my situation?
BFAs are private and do not carry the same “weight” as Consent Orders obtained in the Family Court. As the Court is not involved with BFAs, Consent Orders are easier to enforce in the event of non-compliance.
A BFA, however, may provide you with a more suitable arrangement in your particular circumstances. BFAs have the flexibility to include any issue that is important to the parties, even if the Court would not consider the issue appropriate for inclusion in Consent Orders.