What is the difference between Consent Orders and a Binding Financial Agreement?

Most separating couples on the Gold Coast decide to formalize their agreement. There are two legally binding ways to do this:

1. Consent Orders

Consent Orders are prepared by your lawyers and filed with the FCFCOA.

• Court Oversight: A Registrar or Judge reviews the application on the papers (no hearing required) and only approves it if they are satisfied the outcome is “just and equitable”.
• High Finality: They are very difficult to set aside once made.
• Lower Cost: The filing fee is $205 (from 1 July 2025).
• Public Record: They are a matter of court record, though not publicly “searched” like land titles.

2. Binding Financial Agreement (BFA)

A BFA (often incorrectly called a “pre-nup”) is a private contract under Part VIIIA or VIIIAB of the Family Law Act 1975.

• No Court Review: A BFA is not filed in court. It is a contract signed by both parties.
• Mandatory Legal Advice: Each party MUST receive independent legal advice from a lawyer, who must sign a certificate on the document. Without this, the BFA is not binding.
• High Flexibility: You can include things a court might not allow in consent orders (e.g., specific terms about property outside Australia).
• Risk of Challenge: A BFA can be set aside on broader grounds than consent orders (e.g., if one party’s conduct was “unconscionable”).

Which is better?

For most property settlements after separation, Consent Orders are the preferred method. They provide greater long-term certainty because a court has confirmed the agreement is fair and equitable. BFAs are more common before a relationship begins or for very high-wealth individuals with complex international assets.

For more details on formalizing your agreement, read our full guide: Gold Coast Property Settlement: A Step-by-Step Timeline

Speak to a family lawyer today. Bell & Senior Lawyers provides strategic advice on all property settlement agreements. Contact us for a confidential consultation.