Binding Financial Agreements & Final Consent Orders in Family Law

Both a Final Consent Order and a Binding Financial Agreement (BFA) have their own advantages and disadvantages, and the choice between the two depends on the individual circumstances.

Consent Orders are legally binding agreements approved by the Family Court. They cover the division of property, payment of spousal maintenance, and/or parenting arrangements following a relationship breakdown. The advantages of Consent Orders include:

• They are court-approved, ensuring enforceability and legal certainty.
• They can be tailored to accommodate the unique aspects of your relationship or property division.
• Utilising Consent Orders can be cost-effective, as parties generally negotiate the terms of the order without the need for an extensive court hearing, or without going to Court at all.

Binding Financial Agreements (BFAs), often referred to as “prenuptial agreements” (prior to marriage), or “separation agreements” (following separation), are private contracts between the couple that establish the distribution of assets, liabilities, and financial resources, and potentially provide provisions for spousal maintenance in the event of separation or divorce.

There is a possibility that a BFA family law agreement can be disputed later, even if it is not a final consent order. In Australia, both Consent Orders and Binding Financial Agreements (BFAs) can be set aside under certain circumstances.

Consent Orders can be set aside if the court is satisfied that:

• There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
• Circumstances have arisen since the order was made that make it impracticable for the order to be carried out.
• A person has defaulted in carrying out an obligation imposed on them by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
• Exceptional circumstances have arisen relating to the care, welfare and development of a child of the marriage and the child or, if the applicant has caring responsibility for the child (as defined in subsection 66B(5)), the applicant will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order.
• The applicant will suffer hardship if the court does not vary or set aside the maintenance order.

Binding Financial Agreements (BFAs) can be set aside if:

• The agreement was obtained by fraud (including non-disclosure of a material matter).
• The agreement is void, voidable or unenforceable.
• Since making the agreement, a material change in circumstances has occurred relating to the care, welfare and development of a child of the relationship and, as a result of the change, it would cause hardship to the child or party caring for the child if the court does not set aside the agreement.
• In respect of making a financial agreement or termination agreement: a party engaged in conduct that was, in all circumstances, unconscionable.
• A payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that flag will be lifted.

It’s always recommended to seek legal advice before deciding on the division of assets. Sarah Bevan Family Lawyers are Accredited Specialists in Family Law with offices in Sydney, Parramatta, Surry Hills & Crows Nest. Call Sarah today for expert legal advice confidentiality assured! 02 9633 1088.

Final Consent Order In Family Law – Family Lawyers Parramatta Sydney