Consent Orders vs Binding Financial Agreements:Which One Is Right for You?

Many separating couples reach a verbal or written understanding about how to divide their property and simply move on, without putting anything formal in place. It feels faster and cheaper at the time, and in the short term it often is.

The problem is that an informal agreement carries no legal weight at all. If your former partner’s circumstances change, if a new relationship or financial pressure enters the picture, or if a dispute resurfaces years later, there is nothing enforceable to fall back on. 

Either party can apply to the court for a property settlement at almost any point within the relevant time limits, regardless of what was previously agreed between you. Assets you assumed were settled, including superannuation, jointly held property, and even inheritances received during the relationship, can all be reopened.

This is where consent orders vs BFA come in. Both are legally binding pathways under the Family Law Act 1975 that formalise how property, debts, and superannuation are divided after separation, and both close off the uncertainty that an informal agreement leaves wide open. 

They work in different ways, carry different costs, and suit different situations, so understanding the mechanics of each, not just the headline differences, is what actually determines whether your settlement holds up if circumstances change.

What Are Consent Orders?

Consent orders are made when both parties agree on how to divide their property, and that agreement is then submitted to the Federal Circuit and Family Court of Australia for approval. 

Once approved, the orders have the same legal force as if a judge had made a decision after a full contested hearing, without either party having to attend court.

How the Application Process Works

To apply, both parties complete an Application for Consent Orders together with a document called the Minute of Consent Orders, which sets out the exact terms being sought. 

This is filed with the court along with full and frank financial disclosure from both sides, covering assets, liabilities, income, superannuation, and any financial resources such as trusts or business interests.

A registrar then reviews the application on the papers, without either party appearing in person. The registrar is not simply rubber-stamping the agreement. 

Under section 79 of the Family Law Act (or section 90SM for de facto couples), the court must be satisfied the proposed division is just and equitable, taking into account:

• Financial and non-financial contributions made by each party during the relationship, including contributions as homemaker or parent
• The current and future financial resources, income, and earning capacity of each party
• The care arrangements for any children of the relationship
• Whether either party will have adequate housing and financial security going forward

If the registrar isn’t satisfied on these points, or if disclosure looks incomplete, the application can be rejected or sent back for amendment. This is the layer of protection consent orders offer that a private agreement simply doesn’t provide.

In our experience preparing consent order applications for clients, the most common reason a registrar sends an application back for amendment isn’t a disagreement over the property split itself. 

It’s incomplete or inconsistent financial disclosure, particularly around superannuation balances and undisclosed debts. Getting the disclosure right the first time is usually what determines whether an application is approved within weeks or delayed by months.

Time Limits That Apply

Married couples must apply for consent orders within 12 months of their divorce order becoming final. De facto couples have 2 years from the date of separation. Missing these limits means you need the court’s permission to apply out of time, which is not guaranteed and adds cost and delay.

Typical Costs and Timeframes

Court filing fees for consent orders currently sit in the low hundreds of dollars, though this changes periodically and should be confirmed with the court. Legal fees for drafting the application and Minute of Consent Orders typically range from around $1,500 to $4,000 depending on complexity, and processing by the court generally takes between 6 and 12 weeks once filed, though this varies by registry workload.

What Is a Binding Financial Agreement?

A binding financial agreement (BFA) is a private contract, made under Part VIIIA of the Family Law Act for married couples or Part VIIIAB for de facto couples, that sets out how property and financial resources will be divided. Unlike consent orders, a BFA is never filed with or approved by the court, which is both its main advantage and its main risk.

The Four Types of BFA

BFAs are categorised by when they’re made:

• Before a relationship or marriage (sometimes called a prenuptial agreement), covering property brought into the relationship and how future property will be treated
• During a relationship or marriage, often used when one party receives an inheritance, business interest, or windfall they want protected
• After separation but before divorce, used to lock in a settlement quickly without court involvement
• After divorce, for parties who reconcile financially after the fact or who didn’t formalise arrangements at the time

Legal Requirements for a BFA to Be Valid

Section 90G of the Family Law Act sets strict formal requirements. Both parties must:

• Receive independent legal advice from a separate lawyer about the effect of the agreement on their rights, and about the advantages and disadvantages of signing it
• Have their lawyer sign a certificate confirming that advice was given
• Sign the agreement voluntarily, without duress or undue pressure
• Exchange copies of the signed agreement, with each party retaining an original

Missing any one of these steps is the most common reason a BFA is later found unenforceable. Courts have set aside agreements under section 90K (married couples) or section 90UM (de facto couples) where there was fraud, where one party failed to disclose a significant asset, where the agreement was signed under duress, or where circumstances relating to a child of the relationship have changed to the point that a child or carer would suffer hardship if the agreement stood.

We regularly see BFAs challenged years after signing, not because the terms were unfair at the time, but because one party’s lawyer failed to properly document the advice given. 

Courts scrutinise the legal advice certificate closely, so the quality of that advice, not just the paperwork confirming it was given, matters a great deal if the agreement is ever tested.

Typical Costs and Timeframes

Because no court filing is involved, a BFA can sometimes be finalised faster than consent orders, particularly if both parties are cooperative. 

However, because both parties need separate, experienced lawyers to negotiate and certify the agreement, legal costs are often comparable to or higher than consent orders, commonly ranging from $2,500 to $6,000 or more per side depending on the complexity of the asset pool.

Consent Orders vs BFA: Detailed Comparison

	Consent Orders	Binding Financial Agreement
Legal basis	Family Law Act s79 / s90SM	Family Law Act Part VIIIA / VIIIAB
Court approval	Required, reviewed by a registrar	Not required or reviewed
Fairness test	Court must find terms just and equitable	No fairness test applied by any third party
Independent legal advice	Recommended, not legally mandatory	Mandatory for both parties, with signed certificates
Time limits	12 months post-divorce, 2 years post de facto separation	No fixed time limit, can be made at any stage
Ability to include future assets or prenuptial terms	Limited, generally deals with current property pool	Can cover future acquisitions and pre-relationship assets
Grounds to overturn	Very limited once approved, generally requires fraud or miscarriage of justice	Can be set aside under s90K/s90UM for non-disclosure, duress, or hardship to a child
Typical cost	Lower to moderate, plus court filing fee	Moderate to higher, due to mandatory separate legal advice
Best suited to	Parties wanting court certainty and a fairness check	Parties wanting privacy, speed, or to protect future or pre-owned assets

Superannuation and Tax Considerations

Both consent orders and a BFA can split superannuation between parties, but the mechanics differ slightly. Superannuation splitting under either method requires specific procedural steps under the superannuation regulations, including notifying the relevant super fund trustee before finalising the agreement. 

Property transfers made under either a consent order or a BFA can also qualify for capital gains tax rollover relief and stamp duty exemptions in most states, provided the transfer directly relates to the breakdown of the relationship. 

This exemption generally doesn’t apply to informal, undocumented agreements, which is one of the more overlooked financial risks of skipping formalisation altogether.

When a Binding Financial Agreement Might Be Best for You

A BFA tends to suit couples who want privacy and no court record, who are negotiating terms before a relationship begins or early in a marriage, or who want to protect a specific asset such as an inherited property, a family business, or pre-relationship savings. Because there’s no court involvement, a BFA can also be adjusted more flexibly over time through a new agreement, provided both parties again obtain independent legal advice.

When Consent Orders Make Better Sense

Consent orders are often the stronger option where the settlement is more complex, where one party wants the added certainty of a registrar checking the terms are fair, or where the parties also need parenting orders finalised at the same time. Because consent orders are far harder to challenge once approved, they generally offer more durable protection for parties who are concerned about a former partner disputing the agreement later.

Common Mistakes That Undermine a Settlement

• Relying on an informal or verbal agreement with no written terms, which offers no legal protection at all
• Assuming a BFA is automatically enforceable simply because both parties signed it, without the required legal advice certificates
• Missing the 12 month or 2 year time limits for consent orders and then needing court leave to apply late
• Leaving superannuation out of the settlement entirely, even though it’s usually one of the largest assets in the pool
• Failing to disclose an asset, which can later result in either a consent order being overturned or a BFA being set aside
• Not considering spousal maintenance as a separate issue from the property division

How to Decide: Practical Next Steps

If you and your former partner have reached a mutual agreement in principle, the next question is how to turn that agreement between the parties into something enforceable. A written agreement alone, without one of these two formal structures behind it, still leaves both of you exposed. Broadly, the decision comes down to how much court intervention you want in the process.

If you’d rather avoid going to court altogether and both of you are on reasonably cooperative terms, a binding financial agreement lets you finalise property, maintenance orders, and other financial arrangements privately. 

If you want the added protection of the court system checking that the outcome is fair before it’s locked in, property orders made by consent give you that layer of oversight without the cost or stress of a contested hearing.

Either way, the goal is the same: to reach agreement on your financial relationship in a form that will actually hold up if your circumstances, or your former partner’s, change down the track. 

Professional legal advice at this stage isn’t a formality. It’s what determines whether the document you sign today still protects you and your property after separation five or ten years from now.

Property Settlements Also Intersect With Other Family Law Matters

Financial settlements rarely happen in isolation. If children are involved, decisions such as whether you can change your child’s school without the father’s consent or whether one parent can enrol a child in school without the other parent’s permission often come up around the same time as a property settlement is being negotiated. Property disputes also raise their own specific questions, including whether a partner can end up with half your house and whether paying rent at a property you own affects your protection in a family law matter. Once a settlement is finalised, many clients also ask about practical next steps such as how to change back to a maiden name after divorce.

Other Family Law Questions We’re Often Asked

Property settlements are rarely the only issue on a client’s mind during separation. We also regularly field questions that sit slightly outside the property pool but still affect a client’s financial or family position, including unusual ones like whether OnlyFans is illegal in Australia, which can become relevant where undisclosed income affects a property settlement. 

If your situation raises a question that doesn’t fit neatly into consent orders or a BFA, it’s still worth raising with your lawyer rather than assuming it’s irrelevant to your settlement.

Getting the Right Advice

Choosing between consent orders and a binding financial agreement isn’t a decision to make from a template. It depends on the size and complexity of your asset pool, whether children are involved, how cooperative your former partner is, and how much certainty you want against a future dispute. 

Our family lawyers, including Hayder Shkara and Caralee Fontenele at Collective Family Law Group, work through both options with clients to identify which structure actually protects their financial position long term. You can view the full team on our family law page, or head to our homepage to book a consultation.

For the official application process and forms, the Federal Circuit and Family Court of Australia sets out the requirements for consent orders in detail, Legal Aid NSW has a useful breakdown of the risks of informal agreements compared to a formal binding financial agreement, and Legal Aid Queensland explains when legal advice is needed and how time limits apply for couples who weren’t married.

This article provides general legal information only and does not constitute legal advice. Every property settlement is different, and you should speak with a family lawyer about your specific financial circumstances before deciding between consent orders and a binding financial agreement.

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