Are Consent Orders Legally Binding?
In short, Consent Orders, alongside any other orders made by a Court, are legally binding on the parties to the proceedings (e.g., ex-partners). This is the main advantage of ex-partners applying for Consent Orders following separation. The Court’s involvement in making Consent Orders results in a legally binding agreement that both parties must comply with. If either party breaches the terms of the Consent Orders, the other party will be able to seek a remedy from the Court, including enforcement of the orders.
In family law matters, the Court will only make orders that it deems just and equitable in all circumstances, meaning that proposed Consent Orders will be assessed by the Court before they are made. Because of this, there are only limited reasons why orders can later be set aside.
Consent Orders for Property Division
It is more or less always the case that parties to a marriage (or de facto relationship) have experienced significant changes in their financial position, especially in longer relationships. If your marriage ends, you may be entitled to a percentage division of the available property pool. In circumstances where you and your spouse (or former de facto partner) are amicable, you may be able to achieve a division of the property pool by agreement, which you can then formalise by way of an Application for Consent Orders to the Federal Circuit and Family Court of Australia.
The Family Law Act 1975 (Cth) (‘the Act’) deals with financial matters relating to marriages and de facto relationships. The Court is empowered to deal with and alter the parties’ respective interests in the property of the relationship, including but not limited to transferring ownership of an asset between the parties, or directing that an asset be sold. ‘Property’ is more broadly defined in these circumstances than simply referring to real estate holdings, and includes all assets, liabilities, financial resources and superannuation interests in the joint or sole names of the parties. In property settlement proceedings after the breakdown of a relationship, the Court can make such orders as it considers appropriate, altering the interest of the parties in the property.
As of 10 June 2025, the Family Law Act now includes a clearer legislative framework for assessing property settlements, with an express focus on each party’s current and future circumstances, including housing, income, and caring responsibilities, rather than just their future “needs.”
In making an Application for Consent Orders, both parties must provide details of all current assets and liabilities, including the values of each bank account, real property and associated mortgages, motor vehicles, household effects, and so on. This is part of the requirements to satisfy the Court that the agreement is fair.
It is now a legal requirement under the Family Law Act itself — not just the Rules — that each party makes full and frank disclosure of their financial position. A failure to disclose any relevant property or interest may result in the orders being set aside.
The Application for Consent Orders will then be considered by the Court and will become legally binding on the parties if the orders are made.
The Court must also now consider whether family violence — including economic or financial abuse — has affected a party’s capacity to contribute financially or non-financially during the relationship. This includes specific recognition of financial control, such as dowry abuse, as a relevant factor.
Does the Court have to be involved?
Whilst there are significant benefits to orders made by consent, it is not the only option available to the parties to finalise their property settlement and sever their financial ties. Binding Financial Agreements allow the parties to a relationship to avoid the requirement to involve the Court.
Binding Financial Agreements vs Consent Orders
There is arguably a greater degree of flexibility in what you might achieve with a Binding Financial Agreement, noting that a Binding Financial Agreement can be entered into before marriage (prenup), during the marriage (postnup), or after separation or divorce. In the event of divorce or separation, the terms of the Binding Financial Agreement may be enforced, and offer each of the parties surety of the next steps for how their assets and other financial interests are to be dealt with.
It is important to note that the Act requires both parties to a Binding Financial Agreement to receive independent legal advice, to avoid coercion, control, fraud and mistake, and to ensure that each of the parties knows what impact the agreement will have on their rights and entitlements. Because of these stringent requirements, Binding Financial Agreements can become more costly than Consent Orders, and the agreements are more often challenged and/or set aside if these requirements are not met.
Other Options
Only an order of the Court (such as a consent order) or a properly prepared Binding Financial Agreement will formalise your agreement and prevent any later claims between the parties. Other documents (e.g. a statutory declaration) are not binding or enforceable, even if signed by the parties.
From 10 June 2025, Courts are encouraged to adopt a less adversarial approach to financial proceedings where appropriate, especially in matters involving family violence. This shift in practice may support a more managed and sensitive approach for affected parties.
It is always best to seek advice from a specialist family lawyer after the breakdown of a relationship or marriage. You should also be aware that a lawyer or law firm can only ever assist and provide advice to one of the parties to ensure that there is a degree of independence and that there can be no conflict of interest.
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Related Blog – What is my Partner entitled to in a Divorce?
