Applications for Consent Orders and Post-Separation Binding Financial Agreements (BFAs) can formalise the details of a property settlement between separated parties to a marriage, or a de facto relationship if certain conditions are met.Transfers of real property that are made pursuant to one of these methods are ordinarily exempt from ad-valorem stamp duty.
Full disclosure of the parties’ financial circumstances are required whether an Application for Consent Orders or BFA is being prepared
Application for Consent Orders
An Application for Consent Orders is prepared by each ofthe parties with or without the assistance of their solicitors. The application is then filed in the Family Court and the Family Court considers whether or not to make the orders sought. If the Court is prepared to make orders in terms of the application, based on them being “Just and Equitable”, then Orders will be issued from the Court and be enforceable between the parties. If there is a breach of the Orders by either party, then the Orders are immediately enforceable.
An Application for Consent Orders can involve more work than a Post-Separation BFA and therefore can be more costly. Parties also need to be aware that the Court must consider whether or not to make the Orders, which will require having to wait a few weeks longer for Consent Orders compared to a completed Post-Separation BFA. Usually parties can expect to wait approximately 6 weeks for Consent Orders to be issued. A filing fee must be paid upon the filing of an Application of Consent Orders with the court.
In order to ensure not only that the Court is prepared to make the Orders, but that they are made with as little delay as possible, it is imperative that the Application for Consent Orders is sufficiently detailed and carefully reviewed before filing with the Family Court.
Binding Financial Agreements
A Post-Separation BFA is also prepared by the parties and usually with the assistance of a solicitor. Unlike an Application for Consent Orders, a Post-Separation BFA is not filed in the Family Court and therefore may be completed in a shorter time frame. As a Post-Separation BFA is not filed in the Family Court, there is no filing fee.
However if there is a dispute between the parties and one party needs to enforce the terms of the BFA against the other, then that party first needs a declaration from the Family Court that the BFA meets the formal requirements of the Family Law Act 1975.
A Post-Separation BFA may ordinarily be prepared at a lower cost than an Application for Consent Orders. However, if a dispute arises over the terms of a Post-Separation BFA, a BFA may turn out to be more costly than an Application for Consent Orders. A party should consider how likely it is that the other party may or may not breach the terms of the BFA.
Both parties to a BFA require legal advice that the agreement meets Family Law Act requirements. Parties to an Application for Consent Orders do not need to obtain legal advice however we would highly recommend that you do.
We are able to offer capped fee pricing for simple matters, depending on the circumstances of the case. Give us a call to discuss your matter, or book an initial consultation with one of our solicitors in your area. Our client information form will assist you to ensure most if not all information required is supplied to our office prior to, or on your initial appointment.
The above material is way of general information and guidance only. It is not intended to be, nor is it a comprehensive outline of the law and procedure relating to Consent Orders and Post-Separation Binding Financial Agreements and does not in any way constitute legal advice. It is recommended that before making any decisions relative to Family Law Matters a party seek independent legal advice.