Consent Orders and Binding Financial Agreements
Reaching agreement is the hard part. Recording it properly is what stops it being reopened in two years — and an informal agreement, however sincere, generally will not.
An agreement about property or children can be recorded in three ways with very different effects. A parenting plan is written and signed but not enforceable. Consent orders are filed with and made by the Federal Circuit and Family Court and are enforceable as orders. A binding financial agreement is a private contract that ousts the court’s power to divide property, and it is only binding if each party received independent legal advice.
Three ways to record an agreement, and why the difference matters
Couples who have reached agreement often assume the work is done. In fact the form the agreement takes determines whether it can be enforced, whether it can be reopened, and whether it achieves a clean break. Writing it in an email and both agreeing achieves very little.
A parenting plan is a written, signed and dated agreement about children. It is not enforceable by a court, though a court would take a recent plan into account if the matter later came before it. Its virtue is flexibility: it can be changed by agreement without going anywhere near a court, which suits parents who communicate well.
Consent orders are an agreement filed with the court and made as orders. They can deal with property, superannuation and children. They are enforceable, and for property they achieve finality — which is the point. The court does not simply rubber-stamp them: it must be satisfied that a property order is just and equitable, and that a parenting order is in the child’s best interests, so a settlement well outside the ordinary range can be refused.
A binding financial agreement is different in kind. It is a private contract between the parties which, if valid, removes the court’s power to make a property order. It can be made before, during or after a relationship. Because it displaces the court’s jurisdiction, the statutory requirements are strict.
Independent legal advice is not optional
For a binding financial agreement to be binding, each party must have received independent legal advice before signing — advice about the effect of the agreement on their rights and about whether it is to their advantage — and each must be given a signed statement to that effect. One lawyer cannot advise both people.
This is where agreements fail. A binding financial agreement that does not meet the statutory requirements is not a slightly weaker agreement; it may be no agreement at all, leaving the parties where they started years later, having spent money on a document that achieved nothing. Courts can also set an agreement aside for non-disclosure, unconscionable conduct, or a material change in circumstances relating to a child.
For that reason we generally recommend consent orders over a binding financial agreement where the parties have already separated and are simply dividing what they have. Consent orders are cheaper, they carry the court’s authority, and they are far harder to unpick. A binding financial agreement earns its place where the parties want to contract out in advance, or where the circumstances do not fit an order.
What the court checks before making consent orders
For property, the court must be satisfied that the orders are just and equitable. It does that on the material in the application, which sets out the assets, liabilities and superannuation of each party and the contributions each made. If the division looks well outside the ordinary range, the court may ask for an explanation or decline to make the orders.
For children, the test is the child’s best interests, assessed against the considerations that took effect in May 2024. Orders that are vague are a common problem: a term such as reasonable communication or as agreed between the parents is unenforceable in practice, because a contravention application requires a term capable of being breached. Specificity is a kindness to your future self.
Getting the drafting right
The requirements for a binding financial agreement, and the grounds on which one can be set aside, are set out in the Family Law Act and section numbering changed with the amendments that took effect on 10 June 2025. They are not reproduced here — confirm the current provisions before relying on them. See sources 1 and 2.