Consent orders vs binding financial agreement

I had a long phone call with a friend in early April, the kind of call where one person mostly talks and the other person mostly listens. He had reached the in-principle agreement stage with his ex on the property split, and now he was trying to work out which legal mechanism to use to lock it in. His solicitor had used the term "consent orders". His ex's solicitor had used the term "BFA". He did not know what either really meant, only that they cost different amounts and got him to a similar-looking outcome. He wanted me to tell him which one to pick.

I am not a lawyer, and I told him so. But I had been through the same decision the year before, and I had asked enough questions to understand the shape of it. The short version of what I told him is the article below. It is not advice. It is a map.

This is plain explanation, not legal advice. For your situation, see a family lawyer.

The two paths

When you and your former partner have agreed on how to split the property, there are two ways to make that agreement legally binding under Australian family law.

A consent order is a court order made by agreement. The two of you sign an application, the court reviews it, and the registrar makes the order. The order has the full force of any other court order. It binds both of you, it is enforceable, and it is very hard to overturn.

A binding financial agreement (BFA) is a private contract. The two of you, with each side getting independent legal advice, sign an agreement that sets out the property split. There is no court involvement. The agreement binds both of you under the Family Law Act, and like any contract, it can be enforced if one side breaches.

Both achieve the same headline result. The matrimonial property is divided according to the agreed terms. The consequences for tax, super, and stamp duty are similar (with caveats). Either one closes the property aspect of the relationship.

The difference is in how they get there, what oversight applies, and how robust they are against later challenge.

Consent orders

Consent orders are made by the Federal Circuit and Family Court of Australia. The application is filed using Form 11 (Application for Consent Orders) plus the proposed minute of consent orders themselves. The court reviews the application and, if satisfied, makes the orders without a hearing. There is a filing fee (currently around two hundred dollars, with hardship reductions available).

The court applies a "just and equitable" test. The registrar must be satisfied that the proposed orders are appropriate, having regard to the contributions and the future needs factors set out in section 79 of the Family Law Act. In practice, the registrar will not second-guess an agreement the parties reached with legal advice, unless it is wildly out of step with what a court would order in a contested case. But the test exists, and applications can be sent back for amendment if something looks off.

The advantages.

• Court-approved, which means the order has been reviewed against the just-and-equitable test
• Very hard to overturn (only on narrow grounds: fraud, suppression of evidence, miscarriage of justice, or impracticability)
• Filing fee of around two hundred dollars
• Both parties can self-represent, though most use a solicitor at least to draft
• Eligible for stamp duty exemption on real property transfers under section 90 of the Family Law Act
• Eligible for the rollover relief on capital gains tax for transfers between spouses
• Accepted by super funds for the splitting of super

The disadvantages.

• The court can refuse to make the orders if it considers them not just and equitable, which is rare but possible
• The agreement has to be drafted in a form the court will accept, which means using the standard precedents
• Some unusual or commercial arrangements (multiple companies, complex trusts, ongoing earn-outs) can be hard to fit into the consent orders format

Binding financial agreements

A BFA is governed by Part VIIIA (for married couples) or Part VIIIAB (for de facto couples) of the Family Law Act. It can be made before the relationship ("prenup"), during the relationship, or after separation. The post-separation BFA is the one that competes with consent orders.

For a BFA to be binding, three things must happen. The agreement must be in writing and signed by both parties. Each party must receive independent legal advice from a separate lawyer about the effect of the agreement and whether it is in their interest. Each lawyer must sign a statement confirming the advice was given.

The advantages.

• No court oversight, which means the parties can structure the agreement in any way they choose
• Useful for complex commercial arrangements, ongoing payments, conditional transfers
• Useful where one or both parties want to keep the matter entirely private
• Useful where the parties want to agree to a split that a court might not approve under the just-and-equitable test (with eyes wide open about the risk this creates)
• No filing fee, no waiting for a registrar

The disadvantages.

• Two lawyers, two sets of fees. The cheapest BFAs cost three thousand dollars all in. The typical range is five to fifteen thousand dollars.
• Can be set aside by a court in a number of circumstances (more on this below)
• The "binding" in binding financial agreement is more conditional than the name suggests
• Less administrative recognition in some contexts (some institutions are slower to act on a BFA than on a court order)
• Stamp duty and CGT relief is available, but the conditions are slightly different and need careful drafting

When a BFA can be set aside

Section 90K (married) and section 90UM (de facto) of the Family Law Act list the grounds on which a court can set aside a BFA. The grounds are wider than the grounds for setting aside a consent order, and the case law has expanded them further.

The headline grounds.

• Fraud, including non-disclosure of a material matter
• The agreement is void, voidable, or unenforceable under contract law (mistake, misrepresentation, duress, unconscionable conduct)
• A material change in circumstances relating to a child of the relationship that causes hardship if the agreement is not set aside
• The agreement is impracticable to carry out
• A party engaged in unconscionable conduct in entering the agreement
• Failure of one of the formal requirements (no independent legal advice, no signed certificate, etc.)

The case law on unconscionable conduct in BFAs is wide. Courts have set aside agreements where one party was found to have been under emotional pressure, where the lawyer's advice was insufficient, where the financial disclosure was incomplete. The case of Thorne v Kennedy in 2017 set the modern benchmark and tightened the bar on what counts as proper advice.

The practical upshot is this. A BFA done well is binding. A BFA done poorly is a litigation invitation. The difference is mostly in the quality of the legal advice and the completeness of the financial disclosure on each side.

Cost comparison

Rough numbers, current as of early 2026, in metropolitan Australia.

• Consent orders, both parties using one solicitor each to draft and review: $1,500 to $4,000 each side, plus the $200 filing fee. Total: $3,200 to $8,200.
• Consent orders, simple matter, using a low-cost online service: $800 to $1,500 each side. Total: $1,800 to $3,200.
• BFA, straightforward post-separation, two solicitors: $4,000 to $8,000 each side. Total: $8,000 to $16,000.
• BFA, complex with companies or trusts: $8,000 to $20,000 each side. Total: $16,000 to $40,000.

Consent orders are cheaper. They are also faster, in most cases, because the drafting work is more standardised.

Why most divorces use consent orders

The numbers reflect the calculus. For the typical post-separation property settlement (a house, two cars, two super accounts, some savings, some debt), consent orders are cheaper, faster, and more robust against later challenge. The just-and-equitable test is not a barrier in most cases because the parties have reached a sensible split with legal advice.

The body metaphor is this. Choosing consent orders is like getting a building inspected before you buy. The inspection costs a little, but you walk away knowing the structure was checked. A BFA is like buying without an inspection, on the strength of a private builder's report. The report can be excellent, but you are relying on the builder's work alone.

BFAs make sense when there is something genuinely unusual about the deal. Ongoing commercial relationships, deferred consideration, conditional transfers, agreements that include provisions a court would not order, parties who genuinely want absolute privacy. For those cases, the extra cost and risk of a BFA is worth it.

For everyone else, consent orders are the default for a reason.

When each works

Consent orders fit when:

• The split is clean and final (one transfer of property, one super split, one cash adjustment, done)
• Both parties are comfortable with court oversight of the just-and-equitable test
• Cost matters
• You want the strongest possible defence against later challenge

A BFA fits when:

• The arrangement is commercial or ongoing
• The split includes provisions a court would not order
• One or both parties want privacy from court records
• The amounts involved justify the higher cost and the residual set-aside risk

The third option no one mentions

There is a third path, which is to do nothing formal at all. You and your former partner agree informally, you transfer property, you split super by separate paperwork, you go your separate ways.

CHOOSE this path only if there is genuinely nothing to formalise. The risk of an informal agreement is that either party can come back, within twelve months of divorce (or two years of de facto separation), and apply for property orders under the Family Law Act. The clock keeps running. An informal split does not stop it.

For anyone with property, super, or significant assets, formalise the agreement. Consent orders are usually the answer.

Final note

Both paths get you to the same place: a binding division of property between former partners. Consent orders cost less, hold up better, and are the right answer for most matters. BFAs cost more, carry more set-aside risk, and are the right answer for a smaller set of complex or unusual arrangements.

Talk to a family lawyer about your specific situation. Bring a list of every asset, every liability, every super account, every business interest. The lawyer can tell you, with the facts in front of them, which path fits.

Pick the simple one when you can.