Should I go with a BFA or Consent Orders?
When couples separate in Australia, they usually need to sort out how their assets will be divided and who will keep the family home, cars, money and superannuation.
Sometimes they also want to specify that one person will pay the other spousal maintenance for a period or eliminate any requirement to pay spousal maintenance entirely.
The two options available under the Family Law Act when people are in agreement are:
- Consent Orders – an agreement you submit to the Federal Circuit and Family Court for approval.
- Binding Financial Agreement (BFA) – a private contract you and your former partner create without needing court approval.
Both options are legally valid, but depending on your situation, a BFA can offer benefits that Consent Orders cannot. Here’s a simple breakdown to help you understand why.
BFAs are ideal for couples wanting a mutually agreed “non‑fair” split
Unlike Consent Orders, BFAs do not need to be fair.
With a Binding Financial Agreement, there is no court looking over your shoulder asking if the terms in the BFA advantage one party. As long as both people sign after receiving independent legal advice, the BFA is valid.
This can be helpful in situations like:
- One person wants to keep the family home but can’t afford to pay the other out a “fair” amount.
- One person earns significantly more than the other.
- One person contributed substantially more than the other.
In comparison, Consent Orders must meet the court’s standards of being fair or “just and equitable” irrespective of what you and your partner have agreed to.
Faster process with no court delays
A Binding Financial Agreement avoids the wait times of court approvals and can be completed within days, not months.
Consent Orders, on the other hand, must be reviewed and approved by the court. This process can take months, and there is no guarantee the court will approve them if they are not satisfied the terms are fair.
Because BFAs do not require court involvement, once both parties receive independent legal advice and sign, the agreement becomes effective.
Elimination of spousal maintenance
A Binding Financial Agreement can include provisions to waive spousal maintenance entirely between parties.
Consent Orders that try to do this will be rejected by the court.
BFAs offer more flexibility
A BFA allows you to be creative and specific about your financial arrangements and allows for complex and tailored arrangements. BFAs offer more flexibility than Consent Orders because:
- They can include unique clauses about business ownership, future inheritances, tax-sensitive arrangements, or specific financial conditions.
- They can deal with future financial scenarios in ways courts might not approve.
Consent Orders, on the other hand, must meet the court’s standards which limits how customised they can be.
BFAs give you more privacy
A BFA is a private contract, meaning your financial arrangements stay between you and your former partner. They are not filed in court, and therefore not part of any public record.
BFAs can be used at any stage of a relationship
A BFA can be made before, during, or after a relationship.
Consent Orders are only available after separation.
This makes BFAs useful for couples who want certainty early on, or who want to protect assets before moving in together.
Final thoughts
A Binding Financial Agreement is not automatically better than Consent Orders, but it can be better for many couples, especially those wanting flexibility and control over their financial settlement.
How we can help
We provide cheap and easy Binding Financial Agreements and Consent Orders Australia-wide. Both options can include a superannuation split and a property transfer with exemption from paying stamp duty.
