Making a family law agreement binding

Consent orders

An Application for Consent Orders is filed with the Federal Circuit and Family Court, usually without anyone attending. A registrar reads the agreement, checks the disclosed financial position, and makes orders if satisfied the outcome is just and equitable under section 79 or, for de facto couples, section 90SM.

The order is a court order. It can be enforced. It ends the other party's ability to make a further property claim. It carries the transfer duty exemption for transfers between spouses under Queensland duty law and the capital gains tax rollover under the tax law, so the house can move from joint names to one name without duty or a CGT event.

The court filing fee for an Application for Consent Orders is modest compared to litigation and the process is largely paperwork. The main limitation is that the registrar has to be persuaded the split is within a defensible range. If you have agreed on something well outside the range, expect a requisition asking you to explain why, and be prepared to explain it properly.

Consent orders can also cover parenting arrangements, either in the same application or separately. Parenting consent orders are enforceable in a way a parenting plan is not.

Binding financial agreements

A binding financial agreement is a private contract that ousts the court's power to make property orders. Because it removes access to the court, the Act imposes formality requirements and the courts read them strictly.

They can be made before marriage, which is what people mean by a prenup, during a marriage, or after a divorce order, under sections 90B, 90C and 90D. The de facto equivalents are sections 90UB, 90UC and 90UD in Part VIIIAB.

What section 90G requires

• The agreement is signed by both parties.
• Before signing, each party received independent legal advice from a legal practitioner about the effect of the agreement on their rights and about the advantages and disadvantages of making it.
• Each party was given a signed statement by their own legal practitioner confirming that advice was given.
• A copy of each statement was given to the other party or their lawyer.
• The agreement has not been terminated or set aside.

One lawyer cannot act for both of you. If your former partner tells you they will "get their lawyer to draw it up and you just sign", the agreement is not binding.

Agreements can be set aside under section 90K, including for non-disclosure of a material matter, fraud, unconscionable conduct, impracticability, or a material change in circumstances relating to a child. Section 90G(1A) also lets a court declare an agreement binding despite a technical defect where it would be unjust and inequitable not to.

Choosing between them

For most separated couples with an agreed split, consent orders are the right tool. They are cheaper, they are court approved, and being court approved is the point.

A binding financial agreement earns its cost in specific situations: before a marriage or a de facto relationship, where one party is bringing in substantially more, where there is a family business or a trust, where an inheritance is expected, in a second relationship with children from a first, and where an agreed outcome sits outside the range a registrar would approve.

Parenting plans, and what they are not

A parenting plan is a written, dated agreement signed by both parents dealing with arrangements for a child. It is not a court order and cannot be enforced. Its legal significance is that a court deciding a later parenting application must consider the terms of the most recent parenting plan when working out what is in the child's best interests.

That makes a parenting plan genuinely useful as a working document for parents who cooperate, and genuinely inadequate where one parent does not comply. If compliance is the issue, you need parenting orders.

A parenting plan made after a parenting order can vary the order, which surprises people. If you have orders and you want to change them informally, take advice before signing anything.