The Difference Between Family Court Consents and Binding Financial Agreements
A Binding Financial Agreement is a contract between couples that outlines the jurisdiction of the Family Court to make orders in relation to their property between them. A Binding Financial Agreement can be made before marriage, during marriage or after separation (similarly, it can be made before, during or after the relationship for de facto couples).
Consent Orders are orders made by the court, agreed to by the parties and approved by the court. They include financial and parenting orders for both married and de facto couples.
1. What are some of the advantages and disadvantages of parties entering into a Financial Agreement?
There are a number of advantages for entering a Binding Financial Agreement over a Consent Order. These advantages include:
- No court appearance required
- Offers parties a level of security and peace of mind when they separate
- It can implement their joint purpose. For example, if a party is entering into a new marriage with property from a previous relationship, and they want to keep it out of the property pool in the events that this new relationship fails
However, some disadvantages can include:
- There is no court oversite
- Parties must have a lawyer, which can be expensive for some people
2. Can you register a Financial Agreement?
No, there is no process to register these financial agreements.
3. What are some of the advantages and disadvantages of entering Consent Orders?
Some advantages of Consent Orders include:
- There is court oversite – the court must assess whether the proposed agreement is just and equitable for the parties
- They include parenting matters (financial agreements do not)
- A lawyer is not required
- Less risk that the orders will be set aside later
4. Can the Court set aside a Financial Agreement and/or Consent Orders?
Yes, the court can set aside Binding Financial Agreements and Consent Orders. The major difference is that it’s a lot easier to set aside a Binding Financial Agreement than a Consent Order. That’s because a Consent Order is made through the court system and the court makes the assessment that it’s just and equitable at the time.
A Binding Financial Agreement can be set aside in some of the following circumstances:
- Circumstances of fraud (e.g. where a party has hidden an asset or bank account)
- Circumstances of unconscionable conduct
- Circumstances of duress
- If the agreement is now impracticable to be carried out
- If there has been a material change in the circumstances of a child of the relationship
A Consent Order can be set aside if there is a miscarriage of justice. This can include:
- Unconscionable conduct
- A party failing to disclose relevant information
- If exceptional circumstances exist in relation to a child of the relationship
5. What are the costs involved in having a lawyer draft these documents?
Since a lawyer is not required to draft a Consent Order, this can save parties some expenses. You can download a Consent Order Kit from the Family Court of Australia website. If parties draft this themselves, they will only have to pay a filing fee of approximately $170.
If you get a lawyer to draft a Consent Order, this can range between $1,500-$4,000, depending on how much work is involved, how many properties there are, and superannuation.
Parties must see a lawyer for Financial Agreements as they need to sign the certificate and there are strict disclosure requirements. The cost depends on what type of agreement (e.g. before a marriage/de facto relationship or during a marriage/de facto relationship). This can range between $5,000-$10,000, depending on the property of the parties.
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