Dividing assets after a separation can be one of the most challenging aspects of ending a relationship. In Western Australia, there are two main legal options to document your property settlement: Consent Orders and Binding Financial Agreements (now simply called Financial Agreements under the amended Family Law Act).
While both serve the same broad purpose, they differ in how they’re prepared, approved, and enforced. Therefore, choosing a Binding Financial Agreement vs Consent Orders can have a major impact on your financial security and peace of mind.
In this article, we’ll break down the key distinctions between these legal tools, including their core features, pros and cons. Keep reading to learn whether a Binding Financial Agreement or Consent Orders may be most suitable for your circumstances.
What are Consent Orders?
Consent Orders are formal agreements made between separating parties that are approved and made legally binding by the Family Court.
Instead of having a judge decide the outcome, you and your former partner can agree on the terms yourselves—whether related to property, finances, or parenting—and ask the Court to make those terms into official orders.
You can apply for Consent Orders without starting court proceedings or during an ongoing matter, which can help you avoid the stress and cost of a drawn-out legal battle.
Before granting the order, the Court will review the agreement to ensure it is fair, practical, and—where children are involved—serves their best interests.
Once approved, the Consent Order carries the same legal weight as a decision made by a judge. Breaching it may result in penalties.
Benefits
- Enforceable by law once approved by the Court
- Can include arrangements for parenting as well as property matters
- No legal requirement to seek independent advice (though it’s strongly recommended)
- More difficult to challenge than a Financial Agreement
Considerations
- Court filing fees apply, and approval times can vary
- Full disclosure of finances and parenting details is necessary
- Does not automatically finalise future claims for spousal maintenance
What is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) is a private, legally binding contract between two people in a relationship—whether married or de facto—that sets out how their finances, property, and other assets will be dealt with if the relationship ends.
These agreements can also include terms about spousal maintenance and financial arrangements for children, helping provide certainty and reduce potential conflict down the track.
Such a contract can be made at any stage: before moving in together, during the relationship, or after separation. Unlike Consent Orders, they don’t need to be approved by the Family Court.
However, for the agreement to be legally binding, both parties must receive independent legal advice about the agreement’s effects and whether it’s in their best interest.
Benefits
- Full control over how assets and finances are divided
- Generally quicker to put in place than Consent Orders
- Avoids court processes and formal approval steps
Considerations
- May be set aside by a court if improperly prepared
- Must include legal advice for each party, which can increase costs
Binding Financial Agreement vs Consent Orders: 7 key differences
1. Scope
The scope of matters considered is a core difference when it comes to Consent Orders vs a Binding Financial Agreement.
Consent Orders offer a broader scope than a Binding Financial Agreement because they can deal with both financial and parenting arrangements.
This makes them especially useful for couples who need to sort out not only how assets will be divided, but also issues like where children will live, how much time they’ll spend with each parent, and who makes key decisions about their upbringing.
In contrast, Binding Financial Agreements are limited to financial and property matters. These agreements can outline how assets, debts, and superannuation will be divided, and may include provisions for spousal maintenance.
2. Legal counsel and costs
A Binding Financial Agreement typically involves higher upfront legal costs compared to Consent Orders. This is because, for it to be legally valid, both parties must obtain independent legal advice before signing.
Each person’s lawyer must explain how the agreement affects their rights and obligations, and confirm this in writing. The personalised nature of these contracts also means they require careful drafting tailored to the couple’s individual circumstances.
In contrast, Consent Orders are generally less complex to prepare and do not legally require each party to seek independent legal advice, though it is strongly recommended.
Consent Orders are submitted to the Family Court using a standard application form and must include enough information for the Court to assess whether the terms are fair and legally sound.
Legal assistance can help ensure the documents are properly prepared and that your interests are protected, but it is not mandatory.
3. Financial disclosure
Consent Orders come with a strict requirement for full and frank financial disclosure. When submitting an application to the Family Court, both parties must share all relevant information about their financial position—including income, assets, liabilities, and superannuation.
This ensures that the Court can assess whether the agreement is fair and equitable. If a party fails to disclose something significant, the Court may later set aside the orders on the basis that there has been a miscarriage of justice.
In comparison, Binding Financial Agreements do not require financial disclosure. As these private contracts are made outside of the court system, the usual Family Court rules—such as disclosure obligations—do not apply.
This comes with risks. If one party hides significant financial information and the other later discovers it, the terms could be challenged and potentially overturned, particularly in cases involving fraud or unconscionable conduct.
4. Application time limits
Binding Financial Agreements can be made at any time—before, during, or after a relationship—without any specific deadlines. This flexibility allows parties to enter into a financial agreement even years after separating, provided both parties agree and obtain the required legal advice.
Consent Orders, however, are subject to strict time limits. If you’re applying after separation or divorce, you must file:
- Within 12 months of your divorce being finalised, or
- Within 2 years of the end of a de facto relationship
If you miss the relevant deadline, you’ll need to request permission (leave) from the Family Court to proceed. This request is typically included as part of your application, but the Court may require additional evidence, such as proof of the relationship and the reason for the delay.
5. Time to finalisation
Other key differences between a Binding Financial Agreement vs Consent Orders is how long it takes to finalise your property settlement and whether the Family Court is involved.
Consent Orders must be reviewed and approved by the Family Court, which adds a formal step to the process and can extend the timeline for finalisation.
When an Application for Consent Orders is submitted, the Court assesses whether the proposed settlement is just and equitable, taking into account factors such as each person’s contributions during the relationship and their future financial needs.
This oversight provides an added layer of protection, ensuring that both parties are treated fairly under the law.
However, it also means there may be delays depending on the Court’s schedule and the complexity of the agreement.
Binding Financial Agreements, in contrast, do not require any court involvement, making the process generally faster to prepare and finalise.
6. Flexibility
Binding Financial Agreements offer a greater degree of flexibility than Consent Orders. Because they are private contracts and don’t require court approval, parties have more freedom to negotiate the terms in a way that suits their personal and financial circumstances.
As a result, you can include arrangements that may not strictly align with what a court might consider “just and equitable,” as long as both parties agree and receive proper legal advice.
That said, the lack of court involvement means the parties bear more responsibility for ensuring the agreement is properly drafted, legally sound, and truly reflects an outcome you are both willing to accept.
As Consent Orders must be approved by the Family Court, there is less room for unconventional or one-sided arrangements.
Which is right for my circumstances?
Choosing between a Consent Order and a Binding Financial Agreement depends on your unique situation, including how complex your finances are, how well you and your ex-partner communicate, and whether you want court involvement or privacy.
Below is a breakdown to help you decide which option might be more appropriate for your circumstances:
When to enter a Binding Financial Agreement
- You want more control over the terms: If you and your ex-partner want to agree on a division that might fall outside what a court would consider “fair,” this legal tool lets you do that—so long as both of you obtain independent legal advice.
- Privacy is important: With these private contracts, there’s no need to submit your financial details to the Family Court. This can be a strong advantage if you want to keep sensitive financial information out of the public record.
- You have complex financial matters: Financial agreements are often preferred when one or both parties have significant assets, business interests, trusts, or other non-standard financial situations. The terms can be tailored to include unique provisions, such as clauses about future inheritances or time-based conditions.
- You wish to avoid court: If you’d rather not deal with court processes and are confident that you and your ex can come to an agreement with legal guidance, this path provides a way to finalise matters on your terms.
When to apply for Consent Orders
- Your financial situation is relatively simple: If you and your ex-partner have already agreed on how to divide your property and there are no complicated assets or debts, Consent Orders offer a straightforward, cost-effective way to make your agreement legally binding.
- You need to resolve both parenting and property matters: Consent Orders can cover both financial and parenting arrangements in a single document. This makes them ideal for families who want to handle all aspects of their separation in one formal step.
- You want the Court to review your agreement: As Consent Orders must be approved by the Family Court, the terms will be assessed to ensure they are fair and reasonable. For many people, this adds peace of mind that the agreement is legally sound and balanced.
- You’re concerned about future enforceability: Because Consent Orders are court orders, they are easier to enforce. If one party fails to comply, the other can return to court to seek enforcement, potentially resulting in fines or other legal action.
Get tailored support with a Binding Financial Agreement or Consent Orders in WA
Separation and divorce can be emotionally and financially challenging, especially when it comes to sorting out property and finances.
Understanding the key differences between a Binding Financial Agreement vs Consent Orders puts you in a stronger position to make decisions that protect your future.
There’s no universal answer; what’s right for one person may not suit another. The best approach depends on your individual circumstances, the complexity of your finances, and whether you want the Court involved.
That’s why getting the right legal advice matters.
If you’re based in Perth or anywhere in Western Australia, the experienced Family Law team at Affinitas Legal is here to support you.
Whether you’re considering a Financial Agreement or applying for Consent Orders, we’ll walk you through your options and help you secure a legally sound outcome with confidence and clarity.
Get in touch today for personalised advice and practical support.
