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BFAs vs. Consent Orders: Key Differences Explained

BFA or Consent Order, which is which? Here's how each works, so you pick the right one for your situation.

BFAs vs. Consent Orders: What's the Difference?

Both Binding Financial Agreements (BFAs) and Consent Orders help couples sort out property and finances after a relationship breakdown. But they're legally distinct mechanisms with different processes, requirements, and implications. Here's the technical breakdown:

Binding Financial Agreements (BFAs)

Legal Basis

  • Governed by ss. 90B–90D of the Family Law Act 1975
  • Private contract between parties (not a court order)

When They Apply

  • Before cohabitation or marriage (s. 90B)
  • During the relationship (s. 90C)
  • After separation (s. 90D)

Requirements

  • Written document signed by both parties
  • Independent legal advice for each party (from separate lawyers)
  • Legal advice certificates signed by lawyers (s. 90G)
  • Full financial disclosure
  • Voluntary (no duress, fraud, or unconscionable conduct)

Process

  1. Parties negotiate terms privately
  2. Lawyers draft the BFA
  3. Each party receives independent legal advice
  4. Lawyers sign certificates
  5. Parties sign the BFA
  6. No court involvement (unless someone challenges it later)

Advantages

  • Private: No court filing, no public record
  • Flexible: Can cover a wide range of scenarios
  • Fast: Done in weeks (not months)
  • Cheaper: ~$2,000–$4,000 total (vs. court filing fees + legal costs)

Disadvantages

  • Can be set aside under s. 90K (fraud, duress, non-disclosure, hardship)
  • Less certain: Courts have discretion to void BFAs in certain circumstances
  • No court "stamp": Some people prefer judicial approval for extra certainty

Enforcement

  • Enforceable as a contract under general contract law
  • Can be enforced by filing for enforcement in the Federal Circuit and Family Court
  • If challenged, court assesses validity under s. 90K

Consent Orders

Legal Basis

  • Made under s. 79 (property) and s. 90SM (financial agreements) of the Family Law Act
  • Court-approved orders (not just a private contract)

When They Apply

  • After separation (you can't get Consent Orders before or during the relationship)
  • Only available for married couples or de facto couples who meet jurisdictional requirements

Requirements

  • Application lodged with Federal Circuit and Family Court (Form 11: Application for Consent Orders)
  • Minutes of Consent Orders setting out proposed property split
  • Supporting affidavits from both parties (detailing assets, liabilities, contributions, and why the orders are just and equitable)
  • Court approval: Registrar or judge reviews and approves (or rejects)

Process

  1. Parties negotiate property settlement
  2. Prepare Minutes of Consent Orders and affidavits
  3. File application with court (filing fee: ~$200)
  4. Court reviews for compliance with s. 79 (just and equitable test)
  5. If approved, orders become final
  6. Orders are sealed and filed

Advantages

  • Court-approved: Orders have been reviewed by a registrar or judge
  • Finality: Very difficult to overturn once sealed (requires appeal or s. 79A setting aside, which is rare)
  • Enforceable as court order: Breach can result in contempt proceedings
  • Property order triggers the one-year bar under s. 79(9) (no further property claims)

Disadvantages

  • Public record: Court filings are (theoretically) accessible
  • Court involvement: Requires lodgment, review, approval (adds time)
  • Less flexible: Must fit within s. 79 framework (court checks "just and equitable")
  • Only post-separation: Can't use Consent Orders to plan ahead

Enforcement

  • Enforceable as a court order (not just a contract)
  • Breach can result in contempt proceedings, fines, or even imprisonment
  • Very difficult to set aside (requires appeal under s. 79A, fraud, or s. 106A miscarriage of justice)

Side-by-Side Comparison

| Feature | BFA | Consent Orders | |---------|-----|----------------| | Legal nature | Private contract | Court order | | Court involvement | None (unless challenged) | Required (court approval) | | Timing | Before, during, or after relationship | After separation only | | Cost | ~$2,000–$4,000 | ~$3,000–$6,000 | | Privacy | Private (no court filing) | Court filing (less private) | | Flexibility | High (parties control terms) | Moderate (must be "just and equitable") | | Finality | Can be set aside (s. 90K) | Very difficult to overturn | | Enforcement | Contract law + Federal Circuit Court | Contempt proceedings | | Best for | Pre-planning, privacy, flexibility | Post-separation finality |

Which Should You Choose?

Choose a BFA if:

  • You want to plan ahead (before or during the relationship)
  • You value privacy and want to avoid court filings
  • You want flexibility to structure the agreement your way
  • You're comfortable with the small risk it could be challenged later

Choose Consent Orders if:

  • You've already separated
  • You want judicial approval for extra certainty
  • You want maximum finality (very hard to overturn)
  • You don't mind the court review process

Can You Have Both?

Yes. Some couples sign a BFA during the relationship, then convert it to Consent Orders after separation. This gives you:

  • Planning certainty during the relationship (BFA)
  • Finality and judicial approval after separation (Consent Orders)

The Bottom Line

BFAs: Private, flexible, cheap, great for planning ahead, but can be challenged.
Consent Orders: Court-approved, final, harder to overturn, ideal post-separation, but less flexible.

Most Aussie couples should get legal advice on which suits their situation. Sometimes you need one. Sometimes you need the other. Sometimes you need both.

Pick the right tool for the job.

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