Guide to Separation - Family Law
An overview for Couples experiencing a Separation with Legal Insights
Topics: Family Law - Binding Financial Agreements - Consent Orders [Financial and Parenting] - Child Support Agreements
29 August 2025, Angophora Legal
The ending of a relationship or a marriage can be a challenging and difficult time for couples and families. The first priority is putting in place arrangements for the care of any children in the relationship of both a short term and long term basis. The next component is negotiating the terms of a financial separation. This article focuses on the options available to spouses or partners in a relationship who wish to reach an amicable resolution to parenting arrangements and a division of financial assets. In Australia there are several options available for a separating couple to documenting and finalising a financial separation
A division of assets between a couple will need to take into account all income, assets, liabilities and financial resources of the parties with careful contemplation of the future needs of the parties. Where there are children to a relationship, additional financial planning is essential to factor in the best interests of the children and for complementing and supporting parenting and living arrangements. There are practical benefits to couple and families adopting a collaborative framework for negotiating a financial separation as this process will likely result in saving considerable amounts of legal costs which would be payable in a scenario where both parties to a relationship engage lawyers and the matter is determined by a Court . A mutual agreement will also provide the parties to a relationship the opportunity to move forward with their lives in a shorter time span and the parties will not have to navigate the subject matter and court processes involved in Court Proceedings which can be emotionally challenging. In this guide, we will provide you with an overview of the types of agreements that be reached between spouses and partners to a relationship. The first step is for parties of a relationship to carefully review any assets or liabilities of the common pool of financial resources and liabilities which is generally referred to as the ‘matrimonial pool’.
Reviewing Assets & Liabilities
The first step is for parties of a relationship to carefully review any assets or liabilities of the common pool of financial resources and liabilities which is generally referred to as the ‘matrimonial pool’. A lawyer will have the experience and professional knowledge to review a range of financial resources including employment income, investment income, other sources of income such as business interests or trusts, investments such as shares or managed funds, superannuation and valuable assets such as real estate, gold, jewellery, motor vehicles and so forth. Often a lawyer will be engaged to assist you with determining whether there are undisclosed assets in a relationship. In reviewing your financial resources, a lawyer will guide you through your long term anticipated housing costs, living expenses, employment capacity, childcare arrangements, medical needs, retirement age and other future expenses. Consideration of any debts, mortgages, loans or other liabilities are also critical to future financial planning to effectively draft a financial separation.
If you are in the process of going through a separation, planning for your long term future after the dissolution of a long term relationship requires careful contemplation in respect to your future financial needs. In NSW for example, housing affordability continues to be a central issue in negotiating a financial separation to accommodate the costs of either future rental expenses, the costs of purchasing a property or the costs associated with owning a property. In our experience, there is a broad range and scope of issues which must be contemplated prior to drafting an effective financial agreement to ensure the long term interests and protection of our client. Another key factor is to ensure any agreement in a financial separation is drafted so that the financial separation can taken place in a practical and logical fashion. In many cases we have had to step in to act for clients in a dispute over how a financial separation should take place in practical terms. To avoid this complicated and often expensive step, it is critical to have experienced high quality legal representation when drafting any family law agreement. When the parties to a relationship make the decision to formalise the terms of an agreement for a financial separation, they generally have a choice of either Consent Orders or a Binding Financial Agreement.
Consent Orders (Financial)
In Australia, parties to a relationship can submit a financial separation agreement document to the the Federal Circuit and Family Court of Australia for approval by the Court. These agreements are known as Consent Orders and an application will need to be submitted to the Court for the Court to approve any Consent Orders. We recommend that you engage an experienced solicitor to draft the application and the terms of the Consent Orders which set out in detail the terms of the division of the assets within the matrimonial pool and creates a legal framework for how that division will be carried out. The Court will then review the Consent Orders to determine if the proposed orders are just and equitable between the parties. A lawyer will help guide you through the meaning of just and equitable, as these concepts have been developed over a long period of time and legal history in Australia. Once approved by the Court, the Consent Orders become orders of the Court and are legally binding and enforceable. If the matrimonial pool of assets includes real estate it is critical to have a lawyer draft the Consent Orders so that any changes to real estate ownership accounts for mortgages and stamp duty on any transfers of ownership. Similar steps may be required for transferring any other financial assets between parties such as motor vehicles, shares or superannuation.
Binding Financial Agreements
For couples who have agreed on the terms of a financial separation, an alternative to submitting Consent Orders to the Federal Circuit and Family Court of Australia is to enter a Binding Financial Agreement (commonly known as a BFA). A lawyer will draft this document for the purposes of formalising an agreement between a couple, and each party to the relationship will need to obtain legal advice as to the effect and operation of any Binding Financial Agreement prior to signing the agreement. The parties to a Binding Financial Agreement must also comply with full and frank financial disclosure prior to signing the agreement to ensure the parties have had the opportunity to review all relevant financial disclosures, normally in the form of tax returns, bank statements, superannuation statements and other financial records. This process can offer a faster streamlined process and a Binding Financial Agreement is generally enforceable, however there are a number of scenarios whereby one party can apply to the Court to have a Binding Financial Agreement set aside.
Parenting Arrangements
Parenting Plans, Consent Orders, Child Support Agreements
Where there are children to a relationship, the couple may also wish to have a solicitor draft a parenting agreement to set out the custody and parenting arrangement for children on a day to day basis. There are different forms of parenting agreements to choose between. Generally, Parenting Plans are documents that will provide a blueprint for the practicalities of parenting arrangements which are negotiated between parents and or carers. Parenting Plans can be both formal and informal, and while Parenting Plans are generally not legally enforceable, where there is a future dispute before the Court in a family law matter, the Court may take into account the content of a Parenting Plan. Parenting Plans provide a useful written instrument for parents and carers to put in place parenting arrangements in amicable coparenting scenarios, and Parenting Plans have the option of being updated from time to time to facilitate changes in lifestyle such as new schools and new living arrangements.
Where parents or carers wish to have a legally enforceable agreement, the parties can prepare Consent Orders in respect to a parenting arrangement be submitted to the Federal Circuit and Family Court of Australia for review and approval. If granted by the Court, the Consent Orders for parenting arrangements will become Orders of the Court and can be enforced. Consent Orders in respect to both financial matters and parenting matters can be prepared and filed at the same time, however we recommended that a lawyer is engaged to draft and file the material to ensure the documents are prepared in the proper form. We strongly recommend that you engage a lawyer to draft a Parenting Plan or Consent Orders as there is a large number of factors to be thought through including living arrangements, schooling and education, extra curricular activities, religion, culture, holidays, special occasions etc. Well drafted agreements are less likely to be challenged in the future and will assist with the facilitation of seamless co-parenting arrangements.
In some scenarios involving a separation, parents or carers of a child may also consider having a lawyer draft a Binding Child Support Agreement which will set out the terms of one party providing financial support to the other party for the purposes of ongoing child support for a set period of time. These agreements are generally used when certain scenarios may necessitate or prefer a Binding Child Support Agreement rather than the parties relying on a Child Support Assessment. An experienced lawyer will guide you through your individual circumstances to assess whether a Binding Child Support Agreement is likely to provide a greater level of financial security to a parent or carer of a child.
If you are going through a separation or divorce, there are various pros and cons of the type of documents that can be prepared to formalise a parenting agreement or a financial separation. Each family will present individual characteristics and unique long term needs which will require sophisticated legal analysis. Within any agreement or document, there will be several complexities and nuances which will require professional legal drafting to ensure the validity and operability of any agreement.
Angophora Legal is passionate about family law and supporting spouses and parents going through a family separation or divorce. Angophora Legal has the expert knowledge and experience to ensure any type of family law agreement is professionally drafted to cater to an individual’s circumstances and future needs. We will guide you through the options available to you and then we will address each component of any legal decision to be made in respect to drafting orders for any financial or parenting arrangements between spouses.
Please contact our firm on (02) 9238 2274 or email info@angophoralegal.com.au to discuss your enquiry and obtain a quote. Many fixed fee services are available for family law.