Family Law Series: Financial Agreements v Consent Orders

If you and your partner have come to an agreement on division of property and now need to finalise the agreement, it is important to consider which option is most appropriate for your circumstances.

Financial Agreements are a good option to finalise the division of property without having to go to court as they do not require the court’s approval to become binding. The downfall of this option however is that they do not offer the same protection for further claims as would filing Consent Orders with the court.

Consent Orders are required to be considered by a registrar and are only approved if they are satisfied that the division of property is just and equitable. A detailed list of assets of the parties, contributions made by the parties, their income and care of any children are required to make the ‘just and equitable’ determination for final Consent Orders.

Consent Orders can be filed without there being any current court proceedings in place and requires the completion of an application along with a copy of the proposed orders. These must be signed and dated by both parties before sending to the court.

Financial agreements can be made at any time during the relationship including before marriage, during marriage and after divorce or before a de facto relationship, during a de facto relationship and after a de facto relationship.

Financial agreements require the following attributes to be binding:

  1. It must be in writing;
  2. There cannot be any prior financial agreements;
  3. It must be stated which section of the Family Law Act it is made under depending on whether it relates to a married or de facto couple; and
  4. It must state how all or party of the finances and property are to be dealt with.
  5. It must be signed by both parties after receiving independent legal advice from a legal practitioner;
  6. A signed statement confirming advice has been provided by the legal practitioner must be attached; and
  7. A copy of that signed statement provided to the other party.

Financial agreements can be terminated via a further written agreement (also known as a termination agreement) and must satisfy the same requirements as listed above. In addition, financial agreements do not lapse upon death of one of the parties.

You should seek legal advice to determine whether a financial agreement or Consent Orders would be most appropriate for your situation.