Separating is one thing. Making the division of property final is another. Until an agreement is put into a form the law recognises, either person can change their mind, and either can later ask a court to divide the same pool again.
There are two ways to close that door. One is a binding financial agreement, made privately under Part VIIIA of the Family Law Act 1975 (Cth), or Part VIIIAB where the relationship was de facto. The other is consent orders: the parties settle the terms, then ask the court to make them as orders.
Both are meant to end the argument, but they work differently and are not equally available at every point in time.
The two routes at a glance
| Binding financial agreement | Consent orders | |
|---|---|---|
| How it is made | Signed by both parties, expressed to be made under the relevant section | Filed with the court, with the agreed terms attached as a draft order |
| The court’s role | None. No court sees it, and nothing is tested when it is made | A judicial officer or Judicial Registrar must be satisfied the order is just and equitable (s 79(2)) |
| Independent advice | Required for each spouse party before signing; without it the agreement does not bind unless a court declares otherwise (s 90G) | Not a statutory condition |
| When available | Before, during or after the relationship (ss 90B, 90C and 90D) | Only while an application can still be brought (s 44) |
| How it is undone | The closed list of grounds in s 90K (s 90UM for de facto) | s 79A, built around a miscarriage of justice (s 90SN for de facto) |
What a binding financial agreement actually does
Part VIIIA lets people make a written agreement about how their property and financial resources are to be dealt with, and about spousal maintenance. There are three doorways, depending on timing: s 90B before a marriage, s 90C during one, and s 90D after a divorce order. Part VIIIAB contains the de facto counterparts. The document has to say which section it is made under, and the parties must not already be spouse parties to another binding agreement with respect to any of those matters.
The force of it sits in s 71A. Where a financial agreement is binding, Part VIII of the Act does not apply to the financial matters and financial resources that the agreement covers. Part VIII is where the court’s power to alter property interests lives. So a binding agreement does not simply record a bargain. It takes the subject matter outside the court’s ordinary reach, which is why the conditions are strict. An agreement that misses them is not a slightly weaker agreement. It is one that leaves the court’s power intact.
The independent advice requirement is the mechanism
Under s 90G an agreement binds the parties “if, and only if” four things are true. It is signed by all parties. Each spouse party was provided with independent legal advice from a legal practitioner, before signing, about the effect of the agreement on that party’s rights and about the advantages and disadvantages of making it. Each was provided, before or after signing, with the practitioner’s signed statement that the advice was given. And a copy of that statement was passed to the other party. The agreement must also not have been terminated or set aside. Section 90UJ says the same for de facto agreements.
There is a safety net, and it is narrow. Section 90G(1A) allows a court to declare an agreement binding despite a missed advice or statement step, if satisfied that it would be unjust and inequitable for the agreement not to bind. That relief has to be applied for by a party trying to enforce the agreement. A document that needs a court application before anyone knows whether it works has lost the certainty it was made for.
How consent orders work
Where there is no current proceeding, the parties file an Application for Consent Orders with a draft consent order, under r 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It is filed in Division 2 and dealt with on the papers: the orders are made in the terms sought, or the application is dismissed (r 10.07).
The court is not a rubber stamp. Section 79(2) provides that it must not make a property alteration order unless satisfied that, in all the circumstances, it is just and equitable to make it, and that applies to an order made by consent. Under s 79(3) the court identifies the existing legal and equitable interests and the existing liabilities, then weighs the contributions each party made and their current and future circumstances. A registrar who cannot see how the proposed division sits against that framework can require more information first.
The rules provide that an order made by consent has the same force and validity as an order made after a hearing by a Judge.
For separated de facto couples the equivalent power is s 90SM. Section 90SB sets a relationship threshold: at least two years together, or a child of the relationship, or substantial contributions by the applicant such that refusing the order would result in serious injustice, or a registered relationship. Section 90SK adds a separate geographical requirement about where the parties were ordinarily resident.
How each one can be undone
Neither route is beyond challenge, and the grounds are not the same.
A financial agreement can be set aside under s 90K, which lists the grounds and then closes the list: fraud, which the section expressly says includes non-disclosure of a material matter; that the agreement is void, voidable or unenforceable; impracticability; a material change relating to a child that will cause hardship; and unconscionable conduct in the making of the agreement.
A property order, including one made by consent, is challenged under s 79A, which is built around a miscarriage of justice by reason of fraud, duress, suppression of evidence including failure to disclose relevant information, the giving of false evidence or any other circumstance. It also reaches impracticability, default in carrying out an obligation the order imposed, and exceptional circumstances relating to a child.
The common thread is disclosure. Both routes can be unwound where someone was not straight about what they had. Where there is a proceeding, s 71B imposes a duty of full and frank disclosure from its start until it is finalised, and s 71A preserves that duty even where a binding agreement covers the matters.
The deadlines that decide what is available
Timing does a great deal of the choosing. For married couples, s 44 provides that once a divorce order has taken effect, property and maintenance proceedings cannot be instituted after 12 months, except by leave of the court or with the consent of both parties. Leave is not a formality: for a property claim the court has to be satisfied that hardship would be caused if it were refused. For de facto couples the standard application period is two years after the relationship ends, again with consent as the alternative and leave on the same hardship footing.
That consent limb is widely missed. Both windows can be reopened by agreement, so a couple who have drifted past the deadline and still agree are not automatically shut out of the consent order route. The court can dismiss proceedings brought that way if satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing them to continue would amount to a miscarriage of justice.
A financial agreement is not tied to those windows. It can be made before, during or after the relationship, and s 90D squarely contemplates one made after a divorce order. Where the window has closed and the other party will not consent, an agreement may be the only route left.
Two shorter clocks catch people out. A respondent’s consent lapses if 90 days pass from the date of the first statement of truth and the application has not been filed (r 10.08). And where an order is to bind a superannuation trustee, the trustee must be given 28 days’ written notice of the terms sought before filing (r 10.06).
Duty and superannuation
Queensland’s Duties Act 2001 (Qld) s 424 provides that duty is not imposed on a transaction to the extent that it gives effect to a matrimonial instrument or de facto relationship instrument. Whether a document answers those definitions is worth settling before anything is transferred. Section 90L of the federal Act does the same for financial agreements, termination agreements, and deeds executed for the purposes of or in accordance with an order or financial agreement made under Part VIIIA. Note the limit: it does not reach a deed implementing an ordinary s 79 order. Section 90WA covers the de facto side.
Superannuation can be dealt with either way. Where a consent order is to bind a fund trustee, the notice period above applies and proof of the value of the interest must be filed with the application.
Which route suits which situation
A binding financial agreement tends to suit people settling the position before a problem exists: protecting an inheritance, a business built before the relationship, or children from an earlier one. It also suits parties who want the arrangement private, and those who have missed the s 44 window and cannot obtain the other side’s consent.
Consent orders tend to suit a settlement reached after separation where the assets are identified and the division is clean. There the court’s involvement is a feature: the orders are made only if they are just and equitable, and they then carry the force of any other order, which matters when real property has to be transferred or a superannuation interest split.
Published 10 August 2026.
Making the choice
The question is rarely which document is better in the abstract. It is which one fits the timing, the assets and the certainty the parties need, and whether the statutory steps for that route can be completed.
Related reading
- Property settlement in Queensland: the four-step framework
- Separating in Queensland: do you have to go to court to divide property?
- How Fraser Lawyers helps with binding financial agreements
- Family law at Fraser Lawyers
- Contact Fraser Lawyers
Need advice? Formalising a property settlement is a step most people take once, and the route chosen is difficult to change afterwards. If this is your situation, contact Fraser Lawyers to understand your rights and where you stand, with no obligation. |
This article is general information only and is not legal advice. Queensland law and the figures referred to can change, and every situation turns on its own facts. Contact Fraser Lawyers for advice specific to your circumstances.
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