You have two options for settling property matters; you can do it through a Consent Order or a Binding Financial Agreement. Both documents reflect an agreement made between you and your partner on how you will handle your property in the event of separation or divorce.
The main differences between a Consent Order and Binding Financial Agreement (BFA) is the way they are drafted up and how they can be enforced.
You can write up a Consent Order which will then need to be brought to Court, and the Court will make the orders that you have agreed on. A Binding Financial Agreement is a contract between you and your partner and there is no third party required to make it enforceable.
Who drafts the document?
You and your partner can prepare Consent Orders by yourselves, you do not need a lawyer to witness the document. If you decide to use a BFA, both of you will need to get independent legal advice. You can get your lawyer to give you legal advice and draft up the BFA, and your partner can have their lawyer review the BFA and provide them with legal advice.
What should it include?
A BFA can only deal with financial or property matters, whereas Consent Orders can deal with parenting matters as well.
Is it fair and reasonable?
A court will only make orders on your Consent Orders if they think that what you have agreed on is fair and reasonable to both parties.
A BFA may not be fair to both of you, and it is possible that you or your partner may have a more advantageous settlement. This is all the more reason why it is important to receive independent legal advice. A lawyer may also prepare a Letter of Advantage/Disadvantage when they review a BFA so that their client is aware of the effect of the BFA.
Enforceability
Consent Orders are enforced by the Court, a BFA is only enforceable where both of you have received independent legal advice. If a BFA is prepared without this independent legal advice, the BFA is void and unenforceable. A Certificate of Independent Legal Advice is required to be prepared and signed to show that both of you have received independent legal advice.
Conclusion
Even though you are not required to have legal advice to make a Consent Order enforceable, it is highly recommended. You don’t want to put the effort into writing a document that won’t be enforced by the court because your agreements with your partner were not fair and reasonable to each of you.
Not only that, but a lawyer will make sure the document reflects the agreement you have reached with your partner, addressing the issues as far as possible. A lawyer can also assist you in providing for any future issues relating to interpreting or enforcing the document. You want to make sure that the effort you put in to agreeing on property settlement and drafting the document actually makes sense.
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