Is a BFA or consent orders cheaper?

Consent orders are generally cheaper. A BFA requires mandatory independent legal advice from a separate lawyer for each party, which adds cost. For most separating couples, consent orders are the more cost-effective route.

Can a BFA be made before marriage?

Yes. A binding financial agreement can be made before, during or after a marriage or de facto relationship. One made before is often called a prenup. Consent orders can only be made on or after separation.

Do I have to go to court for consent orders?

No. Consent orders are reviewed on the papers by a registrar — there is no hearing. You submit the application and draft orders, pay the filing fee, and the court approves them without anyone attending.

Are consent orders harder to overturn than a BFA?

Generally yes, because they carry court approval. A BFA can be set aside on contract-related grounds like non-disclosure or failure to obtain independent legal advice. Both are binding when properly made.

What if I miss the time limit?

Married couples must apply for property orders within 12 months of their divorce becoming final. De facto couples have 24 months from the date of separation. After these deadlines, you need court permission to proceed, which adds cost and uncertainty.

Can consent orders cover both property and parenting?

Yes — consent orders are the only instrument that can cover both in the same document. A BFA cannot include parenting arrangements.

BFA or Consent Orders? Which Is Right for You (2026 Guide)

BFA or Consent Orders

Once you've reached an agreement on property, you need to make it legally binding. There are two main routes: consent orders and binding financial agreements. They work differently, cost differently, and suit different situations. This guide explains which is right for you.

What are consent orders?

Consent orders are orders made by the Federal Circuit and Family Court of Australia that reflect an agreement the parties have already reached. You don't attend court — a registrar reviews the proposed orders on the papers and, if satisfied they are just and equitable, approves them. Once approved, they are binding court orders with the full force of law behind them.

Consent orders can cover property (real estate, superannuation, savings, debts), parenting arrangements, and spousal maintenance. They are the most common way to formalise a property settlement after separation.

What is a binding financial agreement (BFA)?

A binding financial agreement is a private contract between two people that sets out how assets, finances and (in some cases) maintenance will be handled. Unlike consent orders, a BFA is never reviewed or approved by a court — it takes effect as a private contract once each party has received independent legal advice from a lawyer and both lawyers have signed a statement confirming that advice was given.

BFAs can be made at three stages: before a marriage or de facto relationship begins (a "prenup"), during the relationship, or after separation. This flexibility is their main advantage.

Side-by-side comparison

	Consent orders	Binding financial agreement
Court involvement	Yes — court reviews and approves	No — private contract
When it can be made	On or after separation	Before, during or after the relationship
Independent legal advice required	Not mandatory, but recommended	Mandatory for both parties — agreement is void without it
Typical cost (legal fees)	$1,500–$3,500 combined	$3,000–$8,000+ combined (each party needs own lawyer)
What it can cover	Property, super, parenting, maintenance	Property, super, maintenance (not parenting)
Grounds to challenge	Fraud, non-disclosure, impracticable	Non-disclosure, undue influence, no legal advice
Suitable for prenup	No	Yes

Which should you choose?

For most separating couples finalising a property split, consent orders are the better default. They are cheaper, faster, cover parenting as well as property, and carry the weight of court approval — which makes them harder to challenge. The court's "just and equitable" check is a feature, not a bureaucratic hurdle: it protects both parties.

A BFA makes more sense when:

You want to make arrangements before or during a relationship (a prenup or mid-relationship agreement)
You have strong privacy reasons to keep the agreement entirely off court records
Your situation is genuinely unusual in a way consent orders can't accommodate
You are de facto and separated more than two years ago (outside the window for court property orders)

What happens if you do nothing?

Not formalising your settlement is the most common — and most costly — mistake. Without consent orders or a BFA:

Either party can return to court to claim a share of assets years later
The other person's future spouse, creditors or estate may have a claim over assets you thought were yours
Time limits apply: married couples have 12 months from the date of divorce; de facto couples have 24 months from separation

The hard part is reaching the agreement

Whichever instrument you use, the real work is negotiating a fair outcome — which is exactly what property settlement mediation does in a single day. Once agreement is reached, your lawyers can draft and formalise it. See property settlement mediation →

Cost comparison: a worked example

For a typical couple with a house, super, and one shared car:

Step	Via consent orders	Via BFA
Mediation (property settlement)	~$3,000–$5,000 shared	~$3,000–$5,000 shared
Legal drafting	~$1,500–$3,000 combined	~$3,000–$8,000 combined
Court filing fee	$175 (2026)	Nil
Total (approximate)	$5,000–$8,000	$6,000–$13,000

Both paths cost a fraction of contested litigation, which typically runs $30,000–$150,000 per side. See the full cost comparison →