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Should you choose a BFA or a Financial Consent Order?


12.05.20

A Binding Financial Agreement (BFA) after separation and a Financial Consent Order (FCO) are the only ways you can make your property settlement (aka your financial separation agreement) official, legal and binding under the Family Law Act 1975 (Cth).

(For Western Australian couples, the family law legislation in WA is different so this doesn’t quite apply to you).

We often have people say to us that they heard that a BFA is the way to go over a FCO. They’ve either heard this from friends, a lawyer, the bank, their mortgage broker and even the Office of Revenue. Sometimes lawyers will encourage BFAs over FCOs simply because they’ve been taught that it’s the better way to go.

When it comes to the bank, mortgage brokers and the Office of Revenue, our experience is that they’re not too across how the FCO works and so they encourage what they know.

The fact is that there is not hard and fast rule as to whether a BFA or a FCO is the way to go.

BFAs can be better in circumstances where:

💭 You and your partner have an agreement about your property settlement (aka financial separation agreement), as well as maintenance (what the Americans term ‘alimony’)—whether that be that some be paid or not.

💭 The agreement is outside of the range of what the law says is likely to be a fair split (aka just and equitable), which may mean that if you wanted to have a FCO there is the risk of the agreement being knocked back by the Court because it’s “unfair” in the eyes of the law.

💭 There are complexities to the agreement—whether because you and your partner have come up with some creative out of the box ideas about how you’ll divide property or simply if the pie (ie. all of the assets, debts and superannuation) is tricky and complex.

From our experience, FCOs are generally the better way to go.

Why? Because:

✅ The paperwork can be prepared relatively quickly

✅ Legal advice isn’t required (although always encouraged)

✅ Because legal advice is optional, you aren’t required to engage a lawyer to act for you, which can mean that you save yourself money, not to mention keeping  your separation relationship on track and on good terms.

How long?

We often find that timeliness is an important goal for couples when it comes to sorting out their financial split. The last thing they want is to have their agreement and the paperwork being dragged out for months and months on end.

From our experience and having regard to a typical family lawyer’s workload, even if your property settlement and maintenance agreement is relatively simple and straight forward, you can expect that for a BFA, it’ll take a minimum of three months for the paperwork to be all prepared, finalised, advice given and signed. Remember, that you both have to have legal advice too so there is the additional cost.

For the couples who we work with and we prepare FCOs, they’re typically signing their agreement paperwork within four weeks. It the normally takes between 2-5 weeks for the Court to approve the agreement.

The above information is general. You should always make your own enquiries as to what’s going to best suit you and your needs and circumstances.