What is the difference between a BFA and consent orders?

What is the difference between a BFA and consent orders?

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Aussie Legal Forums › Forums › Family Law Forum › What is the difference between a BFA and consent orders?

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  • Sofeeya
    Sofeeya April 16, 2025 at 1:07 am

    I am separating and I have been doing some research. I spoke to a solicitor, and he said I should do consent orders. It is very expensive. I have had friends tell me that I should look into do a binding agreement for separation. It seems to be a lot cheaper. Has anyone been through the process and can guide me?

    MV
    MV April 24, 2025 at 12:25 am

    Dear Sofeeya,
    The choice of which path you take (binding separation agreement or consent orders) depends on what you are aiming to achieve.
    Consent orders is a process that requires the applicants who have already agreed to the terms of their separation, to file an application in the Federal Circuit and Family Court of Australia (“FCFCOA”). The application can be for Financial Orders and/or Parenting Orders.
    The only reason that you should consider consent orders over a binding separation agreement is if you want the Court to issue parenting orders.
    The consent order paperwork is not so straightforward and takes longer to complete. Hence the extra cost of the hours spent by the certifying lawyers. And yes, each party needs to have an independent lawyer advise each client and sign a certificate to that effect.
    Typical time from start to finish is 2 to 3 months.
    A binding separation agreement (same as a BFA but used for separating assets etc) requires the 2 lawyers and the certificates, but is much quicker at about 3 to 4 weeks from start to finish. A binding separation agreement cannot include any arrangement in respect of children or child support.
    Both consent orders and a BFA meet the requirements for stamp duty free real estate title transfers and superannuation splitting.
    Consent orders cost are typically $4k to $5k and a BFA is $3k to $4k.
    You also said that your solicitor suggested using consent orders. Most do as a consent order is issued by the FCFCOA and cannot be challenged in the future, while a BFA technical can be challenged as a BFA is a private agreement. I have been involved in the completion of over 3,000 BFAs and I have never heard of a binding separation agreement being challenged in Court.

    Kind regards,
    AussieLegal

    AussieLegal Moderator

    Sofeeya
    Sofeeya April 29, 2025 at 2:25 am

    Hi MV,
    I believe that we can make an application without having to use solicitors? The solicitors are the most expensive part. Why do you recommend a BFA which does need solicitors?
    Sofeeya

    MV
    MV April 30, 2025 at 12:56 am

    Hi Sofeeya.

    Yes, technically, the parties can make an application to the Court without legal advice and certification. The role of the Court is then to examine all the facts (which they do even if there are lawyer’s certificates) but they take a greater role. Unless the orders sought are within the Court’s tight tolerances, they will reject the application and ask the parties to seek legal advice.
    It is very difficult to get the documents right as they are complex. You need some experience to know what the requirements and tolerances are.
    It is very difficult to get orders approved without the advice and certification from the lawyers.
    Visit the Court website and download the Application for Consent Order and the Draft Consent Orders (the document that you are asking the Court to stamp and approve) and explore them. Let this community know what you think.
    https://www.fcfcoa.gov.au/fl/forms/app-consent-kit
    Kind regards,

    AussieLegal Moderator

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