Family law4 min read

Consent orders or a binding financial agreement?

Consent orders and a binding financial agreement are alternatives, not a sequence.

By Un-Ai Jo, Principal Solicitor · Admitted in NSW, 2015 · Reviewed September 2026

What this is

General information about the law in New South Wales. It is not legal advice, it does not take account of your circumstances, and no solicitor–client relationship arises from reading it.

They are alternatives, not a sequence

You choose one or the other. A binding financial agreement is not a cheaper form of consent orders.

Consent orders

You file an Application for Consent Orders with a minute of the orders you want. A registrar of the Federal Circuit and Family Court considers it on the papers. You do not attend. The registrar must be satisfied the orders are just and equitable under s 79 for married couples or s 90SM for de facto couples, and will refuse to make orders that are not, even where both parties agree. From 10 June 2025 those sections set out the decision-making steps expressly and require the effect of family violence on contributions and on future needs to be taken into account.

Made by a court, so enforceable as an order
Very difficult to set aside: s 79A grounds only
Cheaper of the two
Requires the split to survive a registrar's scrutiny

Binding financial agreement

A private contract under Part VIIIA of the Family Law Act 1975 (Cth) for married couples, or Part VIIIAB for de facto couples. No court sees it. Each party must receive independent legal advice before signing and each lawyer must sign a certificate; without both certificates the agreement does not bind under s 90G(1), and only a court order under s 90G(1A) can save it.

No court scrutiny, so terms a registrar would refuse are possible
Can be made before or during a relationship, not only after it ends
Private
More expensive, because two lawyers must advise
Can be set aside on grounds including fraud, which s 90K(1)(a) says includes non-disclosure of a material matter; the agreement being void, voidable or unenforceable, which is how duress and undue influence are run; unconscionable conduct; and a material change relating to a child: s 90K for married couples, s 90UM for de facto couples

Duty and tax are not the reason to chooseA transfer made under consent orders and a transfer made under a binding financial agreement both attract the transfer duty exemption in s 68 of the Duties Act 1997 (NSW). Both can also attract the capital gains tax rollover in Subdiv 126-A of the Income Tax Assessment Act 1997 (Cth), though the rollover has its own conditions: s 126-25 requires that the parties have separated with no reasonable likelihood of cohabitation, and that the transfer happens because of the breakdown. A pre-nuptial agreement acted on during an intact relationship therefore gets the duty exemption but not the rollover. An informal agreement gets neither.

How to chooseIf you have reached an agreement a court would approve and you want it to be robust, consent orders. If your agreement would not survive a registrar, or the arrangement needs to be private, or you are making it before or during the relationship, a binding financial agreement.

Superannuation

Splitting superannuation requires procedural fairness to the trustee in either route. The fund must be given notice and an opportunity to object before the order is made or the agreement is signed.

Current as at September 2026. Check anything here against your own documents and dates before you act on it.

Separating: the first three decisions

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