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What’s the difference between a BFA and a Financial Consent Order?


12.05.20

We’re often asked this question, but I think what people actually want to know is:

  1. What on earth is a Binding Financial Agreement (BFA) and what’s a Financial Consent Order (FCO)?

  2. Do I need either of these things when it comes to making our property settlement (aka our financial separation agreement) official—legal and binding?

  3. When should a BFA or FCO be used? 

  4. Is there an easy to understand comparison of the differences between the two?

To learn more about points (2) and (3), click on the links above to be taken directly to those blogs.

What’s a BFA?

A BFA is a private financial agreement that is recognised under the legislation that deals with a property settlement and maintenance.

(BFAs can be prepared and signed either before a couple start living together, during their relationship, before they marry, before they divorce and after separation. This blog deals with BFAs after separation).

Put simply, online BFA templates won’t do you justice and when or if you take it to your lawyer for the required advice, you can expect that your lawyer will suggest massive edits or a complete redo. Why? Because in order for BFAs to be legal and binding, there are specific words, turn of phrase and the like that must be followed under the legislation.

WARNING: We’re seeing software companies and inexperienced family lawyers and non-lawyers create basic online templates and charge people money for it. We’d encourage you to save your time and money and speak with an experienced family lawyer first about the paperwork you need and the cost involved.

BFAs really ought to be prepared by an experienced family lawyer.

You and your partner must both receive independent legal advice before you sign the agreement.

Here is a summary:

✅ Private legal agreement that is binding and enforceable

✅ Doesn’t get approved by the court

✅ Legal advice is required for both you and your partner

What is a Financial Consent Order?

A FCO is a legally recognised agreement that is binding and enforceable.

Two documents get prepared—an Application for Consent Orders (what we call ‘the numbers document’) and the Proposed Orders by Consent (which we call ‘the legalese document’).

Now although the Family Court says that you can DIY the Application, the reality is it’s a seriously ugly Court form. It’s not user friendly, it quotes legislation at you and it’s 9 pages of instructions, plus 27 pages of questions for you to complete. Seriously, check it out.

Although a FCO is a Court Order, neither you nor your partner will actually go to Court.

What happens is your agreement paperwork once prepared and then signed by you, is submitted to the Court online.

The Registrar, who is a lawyer of the Court, sits down in his or her office, reviews your agreement paperwork (the numbers document + the legalese document) and then if they’re satisfied that the proposed financial split is fair (just and equitable), your agreement will be stamped and approved.

The Orders are uploaded onto your online Court account (known as the Commonwealth Court’s Portal) and they then become available for download.

It’s then just a matter of you and your partner then taking steps to implement your agreement.

It really is that simple and straightforward.

Here is a summary:

✅ Legally binding and enforceable agreement

✅ Gets approved by the Court if the agreement is deemed fair

✅ Legal advice is optional

There’s a reason why we specialise in FCOs, but form your own view. Check out this short comparison between BFAs and FCOs CLICK HERE.