When a marriage ends or a relationship breaks up it can be difficult to split property and devise a plan to care for children. Creating a binding financial agreement or applying for consent orders are two different ways to make this process easier. 

But what’s the difference between the two? What do the two terms mean? And which is best for your relationship? Let’s take a closer look. 

Consent orders explained

A consent order is an agreement made out of court by a couple or spouses that lays out arrangements around parenting, finances, property and spousal maintenance. These are typically prepared by a family law expert after the relationship or marriage ends and can be used to change existing family law orders. 

The great thing about consent orders is that you are not required to go to court to prepare an order that is legally binding. All you’ll need to do is come to an agreement with your ex-partner on all relevant matters, write it down in the proper format then ask the court to formalise the agreement and make it legally binding (if you think it’s necessary). 

While it’s possible to prepare a consent order yourself, it’s usually best to seek legal advice from a family lawyer who can make sure you understand the content of the order and help you fill out forms and lodge documents. 
Consent orders in summary: A consent order is a quick, easy and affordable way to form a legally binding agreement on property division and parenting after a breakup or divorce that’s prepared by you or a lawyer and formalised by the court.

Binding financial agreements explained

A binding financial agreement (BFA), often called a prenup, is a legally binding document that sets out how the property of a couple will be divided if the relationship or marriage ends. Unlike consent orders, BFAs are typically prepared before the relationship ends and do not need to be formalised by the court. 

BFAs can also include details around ongoing financial maintenance and should include provisions for any children within the relationship or marriage. When preparing a BFA each party must receive independent legal advice throughout the process and each person’s lawyer should prepare a statement confirming they provided advice. 

Binding financial agreements are legally enforceable by the courts in most cases unless it’s proven that there was fraud, that the agreement is unfair to one party, that there’s been a major change in the circumstances of one party or if one party has failed to comply with an obligation under the agreement. The agreement can also be disregarded if it’s proven that it was signed under duress (for example, if one party threatened not to go through with a marriage unless the agreement was signed). Binding Financial Agreements can also be set aside if both parties did not receive independent legal advice prior to entering into the agreement

Binding financial agreements in summary: A binding financial agreement is a legally enforceable agreement made by a couple, usually during a relationship or before marriage, which sets out how property will be divided in the event of a breakup or divorce.

Legal advice from an experienced family lawyer

Whether you need a consent order or a binding financial agreement – it’s always best to get honest, impartial advice from an experienced family lawyer before preparing legal documents. The friendly team here at Testart have years of experience preparing and advising on both consent orders and BFAs. 

To begin the process of preparing your own BFA or consent order enquire now and we’ll arrange a free consultation to get you started.