Over the years I have been often asked this question. In accordance with the Family Law Act 1975 (the Act), couples may undertake their agreed property settlement either by Consent Orders or by a Binding Financial Agreement.
The main differences between the two agreements are:
- Consent Orders must be reviewed by the court;
- They can contain orders for both financial and parenting matters;
- They must be fair and equitable in the circumstances; and
- Those orders are enforceable by the court.
Binding Financial Agreement
- It is a private contract between the parties;
- It allows you to contract out of the binding provisions of the Act;
- Only property matters can be addressed;
- The agreement does not have to be fair and equitable to the parties, in fact, the Act allows it to be unfair;
- Each party to the BFA must have independent legal advice as to the advantages and disadvantages of the agreement;
- The court may refuse to enforce the BFA where:
- i. the requirements as set out in the Act have not been met;
- ii. where a party has purposely not disclosed all their assets or liabilities to mislead;
- iii. been a party has acted fraudulently;
- vi. where a party has exerted duress; or
- v. where one party has deliberately taken advantage involving serious misconduct or involve conduct which is clearly unfair and unreasonable.
The preparation of Consent Orders or BFA’s must be undertaken noting the requirements demanded by the legislation and considering the particular circumstances of the parties. We have many years of experience in drafting these documents and have successfully submitted consent orders that have been approved by the court. Our drafting of BFA’s has ensured it met with our client’s requirements and ensured in accordance with the law that they will withstand any application to be set aside. If you or anyone you know has any questions regarding Consent Orders or Binding Financial Agreements please do not hesitate in contacting me.
0419 233 670
ps. I am available to discuss legal matters either in my office or by Zoom conference; please note that notary services must be undertaken in person.
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