Do I use a Consent Order or a Binding Financial Agreement to document our Property Settlement
There are only 2 ways your property settlement agreement in a way that is legally binding and recognised at law.
If you document your property settlement in any other way, such as by signing a letter or Statutory Declaration, it will not be considered to be a property settlement which can be enforced, or which is binding.
Only after considering your own personal circumstances, can a lawyer advise you of the advantages and disadvantages to you of documenting your property settlement agreement using either Consent Orders or a Binding Financial Agreement.
The only way your property settlement will be final, enforceable and binding upon both of you is if you document it using either:
- Consent Orders made by a Court: or a
- Binding Financial Agreement which complies with all legal requirements.
Some differences between Consent Orders and a Binding Financial Agreement (Separation or Divorce Agreement) include:
- Consent Orders have to be made by a Court. The Court will only make the Consent Orders you have agreed on if the Court thinks they are “just and equitable” (broadly speaking means “fair and reasonable”).
- The terms of a Binding Financial Agreement do not have to be fair.
- There is not independent scrutiny given to a Binding Financial Agreement by a Court or any other body, nor are its terms reviewed by a Court or any other body.
- A Consent Order is filed in the Court.
- A Binding Financial Agreement is not filed or registered anywhere.
- You can use Consent Orders to document your parenting and property settlement agreement in the same document however you cannot document your parenting agreement in a Binding Financial Agreement.
- You do not have to use lawyers to do Consent Orders, you can do it yourself.
- To enter into a Binding Financial Agreement, both spouses must each have their own lawyer give them independent legal advice and sign a Certificate of having done so.
- Sometimes a Binding Financial Agreement is the better option to try to extinguish Spousal Maintenance rights.
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Other Pages in the Property Settlement Section
- What does Property Settlement & Division involve
- How do I work out how much I will get or pay – How is Property Division Calculated: The 4 Steps
- Do I have to document your Property Settlement Agreement
- Risks of not documenting your Property Settlement
- How do you document your Property Settlement
- Consent Orders or BFA to document Property Settlement
- Property which must be divided
- Your Company & Property Settlement
- Your Business & Property Settlement
- Trusts in a Property Settlement
- Repaying Loans or Gifts from relatives made during Relationship
- Property Settlement & Superannuation Splits
- Stamp Duty, Capitals Gains Tax & Property Settlement
- Bankrupt Spouse in Property Settlement
- Third Parties (Banks, Creditors, Family) in Property Settlement
- Property Settlement Time Limits