Divorce vs consent orders vs financial agreement — which one do you actually need?

In this guide(8 sections)

This is hands-down one of the most common mix-ups I see, and it's no wonder — divorce, consent orders and financial agreements all sound like the same "ending things" paperwork. They're not. They do three completely different jobs, and getting them muddled is how people end up thinking they're "all sorted" when the biggest part isn't done at all. Let me lay it out plainly, so you know exactly which one (or which combination) you actually need.

The one-line version of each

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The misconception that catches almost everyone

Here's the big one: getting divorced does NOT divide your property or sort out the kids. A divorce ends the marriage — the legal status — and nothing else. Plenty of people get their divorce through, breathe a sigh of relief, and don't realise the house, the super and the savings are all still legally unfinished. That can come back to bite years later.

So in most cases, "ending things properly" is actually two separate jobs: the divorce (ending the marriage) and a property settlement (dividing what you own), usually locked in with consent orders or a financial agreement.

What each one is, in plain English

Divorce

Divorce is simply the legal end of your marriage. You have to have been separated for 12 months, and for most people it's a straightforward application with no court appearance. What it does not do: divide property, deal with superannuation, or sort out parenting. Those are separate. One important flow-on, though — once your divorce is final, you have 12 months to finalise property, so it quietly starts a clock.

Consent orders

Consent orders are how you take an agreement you've reached — about property, the children, or both — and make it official and enforceable. You file it, a court Registrar checks it's fair (or in the kids' best interests), and approves it on the papers. No hearing. They're binding, they unlock the stamp-duty exemption on transferring the house, and they can split superannuation. For most separating couples who've agreed, this is the path.

Binding Financial Agreement (BFA)

A Binding Financial Agreement is a private contract about how property is divided — no court approval needed. It can be made before, during, or after a relationship (a "prenup" is just a BFA made beforehand). The catch: for it to be valid, both of you must get your own independent legal advice. BFAs shine where you want privacy, or future protection — a new relationship, a business, family wealth to quarantine.

So which do you actually need?

Here's the plain decision guide:

• Just want to end the marriage and you've nothing to divide? A divorce alone may be all you need.
• You've agreed how to split things (and/or arrange the kids)? Get a divorce and lock the agreement in with consent orders — the common, cost-effective combo.
• You want privacy, or to protect assets going into or out of a relationship? A financial agreement is usually the better fit.
• You're de facto, not married? There's no "divorce" for you (you weren't married) — but you absolutely can and should finalise property with consent orders or a BFA, within 2 years of separating.

When people see it laid out like this, the fog usually clears. And if it doesn't, that's genuinely what a first chat is for — I'll tell you which path fits in about ten minutes.

How they work together

For a typical married couple with a house and some super, the full picture is usually: separate → reach an agreement (often with some negotiation or mediation) → file consent orders to lock it in → apply for the divorce after 12 months' separation. The divorce and the property settlement are different steps, often done months apart. You don't have to be divorced to sort the property — and you shouldn't wait, because the longer things sit unfinished, the messier they get.

Don't forget the deadlines

• Married: once your divorce is final, you have 12 months to finalise property (consent orders or a BFA). Miss it and you need the court's permission, which isn't guaranteed.
• De facto: you have 2 years from separation to sort property.

There's no deadline on the divorce itself (you just need 12 months' separation first), and no deadline on sorting parenting — but property has real time limits, so don't sit on it.

A word from me

None of this needs to be a fight. The three tools above exist to let people separate fairly and move on with certainty — and most of my clients finalise everything without ever setting foot in a courtroom. If you're not sure where to start or what you need, tell me what's going on. The first conversation is free, in confidence, and there's no obligation — just a clear answer.

Frequently asked questions

What's the difference between a divorce and a property settlement?

A divorce ends your marriage — the legal status — and nothing else. A property settlement divides what you own and owe (house, super, savings, debts). They're completely separate steps, and getting divorced does not automatically sort out your property.

Do I need consent orders if I'm getting divorced?

Not for the divorce itself, but almost certainly for your property. A divorce doesn't divide anything. If you've agreed how to split your assets, consent orders make that agreement legally binding and enforceable — and unlock the stamp-duty exemption on transferring property.

What's the difference between consent orders and a Binding Financial Agreement?

Consent orders are approved by the court and are generally cheaper and very final. A BFA is a private contract that doesn't go near a court but requires both people to get independent legal advice to be valid. Consent orders suit most couples who've agreed; BFAs suit those wanting privacy or future asset protection.

Can I do a property settlement before I get divorced?

Yes — and many people do. You don't have to be divorced (or even apply for divorce) to finalise property through consent orders or a BFA. In fact, sorting property early is usually smart. Divorce just starts a 12-month clock to finalise property once it's granted.

Do I need a divorce at all if we were never married?

No. Divorce only applies to married couples. If you were in a de facto relationship, there's nothing to "divorce" — but you should still finalise property through consent orders or a financial agreement, within 2 years of separating.

Which is cheaper — consent orders or a BFA?

Consent orders are usually the cheaper path, because a BFA requires two lots of independent legal advice and tends to involve more drafting. But "cheaper" isn't the only question — the right choice depends on whether you want court approval and finality (consent orders) or privacy and flexibility (a BFA).

Can a financial agreement be overturned later?

A BFA can be set aside by a court in limited situations — things like fraud, one party not disclosing assets, duress, or it not being signed properly with genuine independent advice. Done properly by a lawyer, it's robust; done cheaply or rushed, it's far more vulnerable.

Is a prenup the same as a financial agreement?

Yes — a "prenup" is just a Binding Financial Agreement made before a marriage or de facto relationship. The same rules apply, including that both people must get their own independent legal advice for it to be valid.

Do consent orders or a BFA deal with the children?

Consent orders can cover parenting arrangements as well as property — you can do both in one application. A Binding Financial Agreement only deals with property and finances, not the children. Parenting can also be set out in a parenting plan or parenting orders.

How long after separating can I apply for a divorce?

You need to have been separated for at least 12 months before you can apply. (You can be "separated under one roof" if you've still been living in the same home — that needs to be explained in the application.)

Will getting divorced affect my will or my super?

It can. Divorce can revoke parts of an existing will and affect super death-benefit nominations, so it's worth reviewing your will and your nominations after you separate or divorce. That's an estate-planning conversation worth having.

Can we sort everything ourselves without a lawyer?

You can file a divorce and even draft consent orders yourselves. The risk is in the wording — poorly drafted orders get rejected or cause disputes, and a DIY BFA without proper independent advice may not be valid. Most people get at least the documents that lock things in checked by a lawyer.

What if we agree on everything — do we still need any of this?

Yes. An informal agreement, even a written one, generally isn't binding, doesn't get the stamp-duty exemption, and can't split super. To make "we agreed" actually safe and final, you need consent orders or a BFA.

Is what I discuss with you confidential?

Completely. Anything you share with me is confidential and protected by legal professional privilege, so you can talk through your situation freely before deciding anything.