Family Court Consent Order vs Binding Financial Agreement

If your relationship ends (whether de facto or marriage), you and your partner need to sort out your financial affairs, and decisions are made about distributing property owned by you and/or your partner.

If you and your partner agree on the distribution of property, it can be done by Consent Orders from the Family Court or entering into a Binding Financial Agreement.

A benefit of splitting the parties’ property using Consent Orders (as opposed to a Financial Agreement) is that the orders will have to be approved by the Court. Whereas, a party to a Financial Agreement can apply to the Court for the agreement to be set aside on a number of grounds.

A benefit of splitting the parties’ property using a Financial Agreement (as opposed to Consent Orders) is that the split of assets does not need to be “just and equitable” as is required with Consent Orders. However the split of assets cannot be grossly unjust, as that is one of the grounds upon which a Financial Agreement could be set aside.

OVERVIEW OF PROCEDURE

Family Court Consent Order v's Binding Financial Agreement

* FAMILY COURT CONSENT ORDERThe parties prepare and submit an Application for the Court to make consent orders regarding how their property, financial resources, and liabilities should be shared. This is presuming the parties agree on the orders sought.

The Application includes both parties fully disclosing their assets, liabilities and financial resources, and completing statements of truth.
The Application must be filed with the relevant Court filing fee.
The Court will then consider the Application and decide to make the consent orders, or refuse to make the orders and provide the parties with reasons why.
Please note that the Court may refuse to make orders sought for a number of reasons, including if the orders sought are not just and equitable.

* BINDING FINANCIAL AGREEMENT  - A draft Financial Agreement is prepared and you obtain legal advice on the Agreement as required under the relevant legislation.

The draft Financial Agreement is then provided to the other party for their review. The other party must get independent legal advice on the Agreement as required under the relevant legislation.
After both parties have got independent legal advice on the Financial Agreement, they may proceed with signing the agreement.

ESTIMATED LEGAL COSTS

Family Court Consent Order v's Binding Financial Agreement

* FAMILY COURT CONSENT ORDERIf you engage a lawyer to assist you with the Application, your legal costs may be in the range of $3000 - $5000 plus GST for the entire process, provided that the other party agrees with the orders you’re seeking and depending on the lawyer you engage.

* BINDING FINANCIAL AGREEMENTOur costs for preparing a Financial Agreement and providing advice on it as required by the relevant legislation start at $2,400 plus GST, for a straightforward agreement. The costs of the other party getting independent legal advice on the draft Financial Agreement will depend on the lawyer they engage. Our estimated costs for providing advice on Financial Agreements start at $1,100 plus GST.

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