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    BFAs v Consent Orders

    30/04/21 2:54 PM

    Binding Financial Agreements (BFAs) and Property Consent Orders are two options in Australian Family Law for couples that wish to divide their property pool on a final basis in a relatively amicable way and to document their agreement. Both options are less stressful, more efficient and cheaper than going to court. Property Consent Orders are made by a court upon application by both parties who have reached an agreement as to how the matrimonial/relationship property should be divided after separation. On the other hand, BFAs function like a private contract between the parties that can be made before the relationship commences, during the relationship, or after the relationship has ended. They do not require an application by the parties to the Court or the Court’s approval. There are advantages to both options which we outline below.

    Why Consent Orders?

    • Easier to enforce than BFAs. BFAs have a long list of requirements that must be satisfied for the agreement to be binding. If one of these requirements is not complied with then this can result in the unenforceability of the agreement. In comparison, once approved by the Court there are only a small number of ways in which Property Consent Orders may be rendered unenforceable.
    • Often more affordable and quicker than BFAs. Lawyers and the court are well equipped to handle Consent Orders and so the processes to complete them are more streamlined.
    • You can often complete Consent Orders yourself. Depending on the complexity of your matter and how well you and your former partner can communicate it may be possible to complete Consent Orders without any legal advice. While this has obvious cost saving benefits, we recommend getting Legal advice before making the application to the Court.

    Why a BFA?

    • More flexible. BFAs can be made at various points in the relationship and can cover matters not usually considered by Consent Orders.
    • Court does not need to consider the agreement fair and equitable. When assessing Consent Orders, the court must be satisfied that the agreement is fair and equitable before making the Orders binding, which is not the case with BFAs.

    Which one should you pick?

    For most separations we recommend documenting your property settlement using Property Consent Orders though if you require some irregular arrangements that are not normally included in Consent Orders, a Binding Financial Agreement might be the better option for you. We recommend you obtain legal advice to ascertain which is the best option for your case.

    If you would like more information on BFAs and Consent Orders, please contact us at Frank Law to speak to one of our experienced family lawyers on (02) 9688 6023 or via frank@franklaw.com.au.

    This is not legal advice. 

    Ben Woodward

    Written by Ben Woodward