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!

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy