Consent Order vs Binding Financial Agreements

Reaching an agreement about money and property after a relationship ends is a big step. The next step is making that agreement official, so both people can rely on it. In Australia there are two main ways to formalise a property settlement: consent orders and a binding financial agreement. They do a similar job, but they work quite differently. Here is a clear, plain-English guide to how each one works and what to think about.

This is general information only and not legal or financial advice for your situation. Formalising a settlement, whether by consent orders or a binding financial agreement, needs independent legal advice.

What is a consent order?

A consent order is a written agreement that you ask a court to approve. In family law, you apply to the Federal Circuit and Family Court of Australia using an Application for Consent Orders, along with a copy of the orders you both want made. You do not have to attend a hearing. A registrar reviews the paperwork and, if satisfied, makes the orders.

The key feature of a consent order is court oversight. For property and financial matters, the court can only make the orders if it is satisfied they are 'just and equitable'. In other words, the court checks that the proposed division is fair in all the circumstances before it signs off. Once made, a consent order has the same force as any other court order and is fully enforceable.

Consent orders can deal with property and finances, spousal or de facto maintenance, and arrangements for children. Many separating couples use a single application to cover their property split and, where needed, parenting arrangements.

What it costs and how long you have

There is a filing fee for an Application for Consent Orders. As at 1 July 2025 the fee is $205, set under the Family Law (Fees) Regulations 2022. Fees are reviewed periodically, so check the court's fees page for the current amount. Fee reductions or exemptions may be available, for example if you hold certain concession cards or would face financial hardship.

Time limits matter. Under section 44 of the Family Law Act 1975, married couples generally have 12 months from the date a divorce becomes final to apply for property or maintenance orders. De facto couples generally have 2 years from the date of separation. If you are outside these limits, you need the court's permission to apply, which is not guaranteed.

What is a binding financial agreement?

A binding financial agreement, often called a BFA or a financial agreement, is a private contract between the two people. It is not approved by a court and there is no 'just and equitable' check by a registrar. The agreement sets out how property, finances and sometimes maintenance will be dealt with.

Financial agreements are flexible about timing. They can be made before a relationship (sometimes called a prenuptial agreement), during a relationship, or after separation. Couples sometimes use one to set expectations early, or to record a settlement once a relationship has ended.

What makes an agreement binding

A financial agreement is only binding if it meets strict formal requirements in the Family Law Act 1975: section 90G for married couples and section 90UJ for de facto couples. In summary, the agreement must be in writing and signed by both people, and before signing, each person must receive independent legal advice from their own legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making it. Each lawyer must provide a signed statement confirming that advice was given.

This is why a financial agreement cannot be a do-it-yourself document. Two separate lawyers must be involved, one advising each person. If the formal requirements are not met, the agreement may not be binding, although courts have some discretion to treat an agreement as binding despite a technical defect.

When a financial agreement can be set aside

Even a properly made financial agreement is not always the final word. A court can set one aside in limited circumstances, listed in section 90K for married couples and section 90UM for de facto couples. These include where the agreement was obtained by fraud, including non-disclosure of a material matter, where it is void, voidable or unenforceable, where circumstances have made it impracticable to carry out, where a material change relating to the care of a child would cause hardship, and where a party engaged in unconscionable conduct when the agreement was made. The High Court applied the unconscionable conduct ground in Thorne v Kennedy [2017] HCA 49.

Consent orders vs binding financial agreements at a glance

• Court involvement: Consent orders are reviewed and made by a court. A financial agreement is private with no court approval.
• Fairness check: A court only makes consent orders it considers just and equitable. A financial agreement has no equivalent court fairness review.
• Legal advice: A financial agreement is binding only if each person received independent legal advice from their own lawyer, with each lawyer signing a statement confirming it. Independent advice is also strongly recommended before agreeing to consent orders.
• Timing: Financial agreements can be made before, during or after a relationship. Consent orders are made once an agreement is reached, usually after separation, and can also cover children.
• Enforcement: Both are legally enforceable. A financial agreement can be challenged and set aside on the specific grounds in the Act.
• Cost: Consent orders attract a court filing fee. A financial agreement has no court filing fee but requires two separate lawyers to advise.

What about superannuation?

Both consent orders and financial agreements can split superannuation. There is an extra step: the superannuation fund trustee must be given procedural fairness. For consent orders, a copy of the proposed orders is usually sent to the trustee at least 28 days before filing, so the trustee can raise any concerns. This is worth planning for early, because it can affect your timeline.

Which one is right for you?

Neither option is automatically better. Consent orders give you a court's fairness check and the certainty of a court order, which many people value. A financial agreement offers privacy and flexibility, including the ability to plan before or during a relationship, but it relies on strict formalities and can be challenged on defined grounds.

The right choice depends on your circumstances, your assets including superannuation, and how much certainty you want. A family lawyer can help you weigh these up. Separately can help you get organised first, by giving you a clear assessment of your financial picture so any conversation with a lawyer is faster and better informed.