Application for Consent Orders:
- Made by agreement reached between the parties or negotiation through solicitors
- Can include property orders and children’s orders but not child support
- Parties do not necessarily need to be represented by lawyers and we often do applications where only one party is represented
- Does not require people to appear before the court, rather it is submitted to the court and considered by a judicial officer ‘in chambers’
- Often used in preference to a Binding Financial Agreement, however may in some circumstances be used in combination with a Binding Financial Agreement
Binding Financial Agreements:
- Entered into by agreement has been reached by the parties or negotiation through solicitors
- Only agreements about property and spousal maintenance but not children’s orders or child support (child support can be agreed by a separate Binding Child Support Agreement)
- Requires both parties to be represented and receive their own independent legal advice
- Can take the form of an agreement regarding parties entering into a relationship/marriage (a.k.a. ‘pre-nup’), during a relationship/marriage, or following the breakdown/separation of that relationship/marriage
What are pre-nups?
Binding Financial Agreements made under the Family Law Act 1975 prior to a marriage (generally).
Binding Financial Agreements can be made:
Before a relationship
- Parties entering into a de facto relationship on a genuine domestic basis
- Parties contemplating marriage, whether in a de facto relationship or not
During a relationship
- Parties in a de facto relationship
- Parties in a marriage
After a relationship has ended
- Parties having separated whether de facto or married
Lawyers will generally refuse to do Binding Financial Agreements where an Application for Consent Orders can achieve the same goal; however, an Application for Consent Orders cannot make a prenuptial agreement. Therefore if parties entering into a relationship wish to protect their assets then they can only do so by way of a Binding Financial Agreement.
Generally, a ‘pre-nup’ will be expensive to enter into for each party and will require them to each have independent legal advice, and possibly advice from an accountant or financial planner. It should be considered by a party coming to a marriage with a great deal of assets that they wish to protect, and should not be left to the last minute and entered into free of any impending marriage, engagement or unborn child to ensure that each party enters into it without any question of undue duress.