Binding Financial Agreement or Consent Order- Which is Best?
Binding Financial Agreement or Consent Order - Which is Best?
The breakdown of a marriage or de-facto relationship is a difficult time. Not only are the parties involved dealing with the emotional upheaval of the breakup, they are also having to deal with questions over how any property or assets of the relationship will be divided, and if they have children, what arrangements will be made in terms of their care.
For the majority of separating couples these questions can be resolved without the need for court intervention - saving time, money and further stress. Generally, disputes can be settled using either a Binding Financial Agreement or Consent Orders.
Binding Financial Agreements
A binding financial agreement (or BFA) is an agreement reached between the parties regarding the split of property, cash and other assets. A BFA can be created at any time during a relationship to determine how assets will be split and can be made before a marriage (i.e a pre-nuptial agreement), during a marriage or following a marriage breakdown. Whilst the couple is required to obtain independent legal advice before signing or entering into a BFA, the Agreement does not have to be approved by, or lodged with, the Court.
It is important to note that a BFA cannot be used to formalise parenting arrangements, or payments relating to the care of children. BFAs can only be used to document the division of property and assets.
Consent Orders
Consent Orders on the other hand can only be made following the breakdown of a marriage or de-facto relationship and can cover property and financial settlement issues, as well as parenting arrangements.
To obtain Consent Orders, one of the parties involved in the relationship must apply to the Court. This can be done after seeking legal advice and negotiating an agreement based on the lawyer's advice as to what is fair and what the Court will be looking for. The Court will then determine whether the agreement is "just and equitable" and if so, it is a relatively straight forward process for them to make the Orders.
Consent Orders are used to formalise any agreements made by the parties involved and are enforceable by the Court.
Which is Best?
Every family law situation is different. The best approach is to speak to an experienced lawyer who can advise you in regards to your rights and obligations, before recommending the most appropriate solution. The main thing is to remember that there are ways to formalise any agreements made with your former spouse or partner, without the need for litigation.
For more information contact the family team at CDQ on ph: 02 8566 2400.
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