Binding Financial Agreement (BFA) and Consent Orders - Property Matters

You have two options for settling property matters. You can do it through a Consent Order or a BFA. Both documents reflect an agreement made between you and your partner on how you will handle your property in the event of separation or divorce.

Differences between BFA and Consent Orders
The main differences between a Consent Order and Binding Financial Agreement (BFA) is the way they are drafted up and how they can be enforced.

Just and Equitable
For a court to exercise its discretion to make consent orders, it must be satisfied by the Court that it is just and equitable to make orders. “Just and equitable” means that the orders must be fair to both parties and fall within the range of possible outcomes that could have come about had a judicial determination been made.

As BFAs are not filed to the Court, there is no requirement that they be just and equitable in accordance with the criteria applied by the Family Court. The parties may agree that the terms of the agreement reflect a satisfactory outcome in the circumstances. There may be practical considerations which lead parties to agree upon the terms of an agreement quite apart from fairness. Consequently, parties are free to enter into grossly unfair agreements if they choose.

Flexibility
Generally, BFAs offer more flexibility than court orders. An exception would appear to be property acquired after divorce. A BFA can only deal with property the parties own or property they owned prior to divorce. Contrary to consent orders, this means that BFA cannot cover parenting arrangements such as which parent a child lives with and/ or visitation rights as it will be void to the extent that they attempt to cover those sorts of matters. Child support payments and matters relating to the financial care of children also cannot be dealt with through a BFA.

In relation to which document you should use really depends on your specific circumstances. If you are going through a separation and want to sort out your finances and parenting arrangement, Straits Lawyers are now offering online services in both English and Chinese.

Simply purchase our online services via this link: https://straits-lawyers.square.site/product/binding-financial-agreement-consultation-bfa-/5?cs=true

Alternatively, you can email us at info@straitslawyers.com or call at 08 8410 9069 to find out more.
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Please note that this article does not constitute legal advice and Straits Lawyers will not be legally responsible for any actions you take based on this article.