Hi, I'm Guy Gibbons, the CEO of Bennett
Carroll. I've got with me today the head of
family law at Bennett Carroll, Carmel Torney . Carmel, I thought today we would have
a look at Consent Orders and Binding
Financial Agreements. These are terms that
get bandied around quite a bit and I
thought people would appreciate a little
bit of clarity and simplicity with what
these things actually are, so these are
the documents that finalise and
formalize your separation deal aren't they?
Carmel: Yes, they are. 
So consent orders are generally made
through the courts through an
application for Consent  Orders or if
you're in court, the court doesn't just
make orders by consent and a binding
financial agreement or financial
agreement as they're known in the act
now are a document that's outside the
court system but is under the Family Law
Act and it's a technical document. 
Guy: So that's that's a final resolution. So why
can't people just do their own you, just knock up a document and sign it, maybe in front of a witness. Why is that not allowed under the court system?
Carmel: So those type of documents aren't legally binding so you might have a Deed which
should be good in a commercial sense but under the Family Law Act you can only
file, formalize and finalize your matters
through either a Binding Financial
Agreement or Consent Orders or
Orders of the court.
Guy: so essentially the Parliament has set up the regime that
requires you to go to the court or to
have a particular type of agreement to
make it enforceable.
Carmel: Yes.
Guy: So what happens
you do something yourself and you think it's final but you don't follow the
consent orders of the financial agreement.
Carmel: okay so the likelihood is if your matter
comes back to court particularly in the
first say five years the courts going to
go ahead and make orders now there's a
limitation period that parties have to
make their proceedings in to have a
guaranteed right to be able to proceed
and that's two years after separation
for a de-facto couple and one year after
the divorce is finalized for a married
couple so sometimes a married couple can
wait many years to get divorced and at
that time continues to run that they
could bring proceedings but if you've
formalized it by way of Consent Orders
or a Binding Financial Agreement that you can
move on with your life without the
possibility that the other person can
come back and make a further claim.
Guy: So if
we don't follow this process, my ex can
have another go at a later stage if I do
really well with my life after
separation. Carmel: Yes they can.
Guy: So it's a way to rule a line under the
relationship and get on with it. Carmel: Yes.
Guy: Okay so that tells us we effectively
need the consent or a binding financial
agreement in order to finalize this
process and no other short cut, side
letter or anything like that is going
to be enforceable for the future.
Carmel: it'd be very unlikely that something
would be considered enforceable in those stages.
Guy: Well thanks for the clarity Carmel, 
hopefully that will give people some
understanding of why we've got to go
through this process .
If you want any more information on this topic or anything related to family law
go to the Bennett Carroll Website which is bcglaw.com.au  and we've got a heap of
information there. Or our lawyers headed by Carmel are happy to help you with any of
those issues. Give us a call or drop onto
the website. Thank you.
