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Consent Orders or a BFA to Document a Property Settlement

Do I use a Consent Order or a Binding Financial Agreement to document our Property Settlement 

There are only 2 ways your property settlement agreement in a way that is legally binding and recognised at law.

If you document your property settlement in any other way, such as by signing a letter or Statutory Declaration, it will not be considered to be a property settlement which can be enforced, or which is binding.

Only after considering your own personal circumstances, can a lawyer advise you of the advantages and disadvantages to you of documenting your property settlement agreement using either  Consent Orders or a Binding Financial Agreement.

The only way your property settlement will be final, enforceable and binding upon both of you is if you document it using either:

Some differences between Consent Orders and a Binding Financial Agreement (Separation or Divorce Agreement) include:

 



 

  • Consent Orders have to be made by a Court. The Court will only make the Consent Orders you have agreed on if the Court thinks they are “just and equitable” (broadly speaking means “fair and reasonable”).
  • The terms of a Binding Financial Agreement do not have to be fair.
  • There is not independent scrutiny given to a Binding Financial Agreement by a Court or any other body, nor are its terms reviewed by a Court or any other body.
  • A Consent Order is filed in the Court.
  • A Binding Financial Agreement is not filed or registered anywhere.
  • You can use Consent Orders to document your parenting and property settlement agreement in the same document however you cannot document your parenting agreement in a Binding Financial Agreement.
  • You do not have to use lawyers to do Consent Orders, you can do it yourself.
  • To enter into a Binding Financial Agreement, both spouses must each have their own lawyer give them independent legal advice and sign a Certificate of having done so.
  • Sometimes a Binding Financial Agreement is the better option to try to extinguish Spousal Maintenance rights.

 

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