The clock is ticking. Time limits apply to filing property settlement applications, so you don’t want to waste the limited time you have on an option that doesn’t suit you. Binding Financial Agreements (known as BFAs or pre-nuptial agreements) and Consent Orders are two of the most common ways to settle property and financial matters after separation or divorce.
Read through the main differences between them below and get in touch with a legal expert in Property Settlement to get the ball rolling as soon as possible.
The Property Settlement Process
Both a Consent Order and BFA can be used in settling any of the following financial matters following divorce or separation.
- The sale, transfer and settlement of your property
- Spousal (or de facto) maintenance
- Superannuation
The property settlement process will involve similar considerations and preparations for either route. The main point of difference is the presence and role of your lawyers, the terms of the arrangements regarding spousal maintenance and future amendments, and the level of involvement of the court, all explained further below.
The Children
A Consent Order can be used to settle financial and property matters and also child custody and parenting arrangements. This will mean a more substantial Consent Order and Application.
A Binding Financial Agreement cannot be used to settle child custody and parenting arrangements. It is for financial and property matters solely.
The Court
A Consent Order is filed with the Family Court, meaning it is up to the court to determine the financial and parenting arrangements are fair and equitable. An expert Family Lawyer will advise you on whether the Family Court will grant the Orders you seek. A Consent Order Application does not, however, require the parties to actually be present in court.
A Binding Financial Agreement is not filed to the courts but instead, is binding under the principles of contract law. A legal professional will determine the validity of the agreement based on whether or not it satisfies the rigorous legal requirements for it to be enforceable.
The Lawyers
Seeking legal advice from a lawyer who specialises in family law and property settlement is always best practice.
While it is not compulsory to seek legal advice for a Court Order, it is highly advisable that you do. It is possible for the Courts to not consider your Order just and equitable and deny it based on a lack of legal advice.
A BFA needs to be made in strict adherence to legislative requirements. It is a requirement that both parties seek independent legal advice for the a BFA to be enforceable.
The Costs
The costs of both a BFA and Consent Order are quite similar. When applying for Consent Orders the other party does not necessarily have to obtain legal representation. However, a BFA can become more expensive as both parties are required to obtain Independent Legal Advice.
The Cooling-Off Period
A Consent Order has a 28 day “cooling off” period from the date it is sealed. In this time, either party can appeal the making of the Order or withdraw their consent. This is difficult however and it is best to obtain expert legal advice so that you are content with the Orders made.
A BFA has no such period, it is legally binding from the day it is finalised and signed making disputes and appeals afterwards much more difficult.
The Rights
Your Consent Order will only be granted if the Family Court deems it to be just and equitable.
This is not the case with a BFA. You personally give up your rights to having your outcomes determined by a court and you cannot make claims regarding spousal maintenance against your former partner in future. So, this agreement type is an efficient way to safeguard against financial liabilities of spousal maintenance in future.
While a Court can set aside a consent order, your BFA can usually only be nullified on a technical deficiency like withholding information, fraud or failing to comply with the rules when drafting the agreement. However if your circumstances change substantially a BFA can be overturned.
The Right Legal Support
At Pentana Stanton Lawyers, we specialise in Family Law and Property Settlement Law. Our reliable experts can help you prepare your binding financial agreement properly. Learn more information about your rights and your options regarding property settlement in Australia and contact the legal experts at Pentana Stanton today.
