You’ve Agreed — But Is It Legally Enforceable?

with Melody van der Wallen, Principal Lawyer at Wallen Family Law.

Many separating couples manage to reach an agreement about property or parenting arrangements without too much conflict — often after talking things through directly, or with help from a mediator.

But Melody van der Wallen, Principal Lawyer at Wallen Family Law, says one of the biggest mistakes people make is assuming that a verbal or written agreement is enough.

“It’s great when people can agree,” she explains. “But unless that agreement is formalised correctly, it’s not legally enforceable — and either person can change their mind later.”

Why Formalising an Agreement Matters

Under family law, there are two main ways to make an agreement binding — Consent Orders or a Binding Financial Agreement.

If one party later refuses to transfer property, pay money, or follow parenting arrangements, you’ll have no automatic way to make them comply unless formal orders are in place.

Consent Orders

Consent Orders are the most common option and are filed with the Federal Circuit and Family Court of Australia.

“They’re suitable for both parenting and property matters,” Melody explains. “You submit the agreed Orders and a short set of supporting documents. The Court reviews them — and once approved, they have the same effect as if a judge made the orders after a hearing.”

The process is entirely administrative, meaning you don’t need to go to court, and the outcome carries full legal force.

Binding Financial Agreements (BFAs)

A Binding Financial Agreement is a private contract between the parties, prepared with independent legal advice on both sides.

“BFAs are often used in situations where people want more flexibility than a court order would allow,” Melody says.

Each party must have their own lawyer, who must sign a certificate confirming that independent advice was given.

“If that advice requirement isn’t met,” she adds, “the agreement won’t be valid.”

What Happens if You Don’t Formalise Your Agreement?

If you leave things informal, you risk the agreement falling apart later.

“Without Consent Orders or a BFA, there’s nothing to stop one person from going back on their word — even years later,”

Melody warns. “In property matters, they could still file a claim against you within the statutory time limits, regardless of what you thought was settled.”

In parenting cases, verbal agreements are not enforceable at all. “If one parent changes their mind about time with the children, there’s no mechanism to compel compliance,” she says.

Quick Answers

Is our written agreement enforceable?

Only if it’s been made into Consent Orders or a Binding Financial Agreement. Otherwise, it’s not legally binding.

Do we both need lawyers?

For Consent Orders, not necessarily — although it helps to have advice. For a Binding Financial Agreement, yes, both parties must have independent lawyers.

Can we file Consent Orders ourselves?

Yes, but most people prefer to have a lawyer prepare them to make sure they meet all technical and legal requirements.

What if one person doesn’t follow the agreement?

If you have formal orders, you can file an Enforcement or Contravention Application with the Court.

From Melody

“Reaching an agreement is a great start — but making it enforceable is what gives you certainty. Whether it’s through Consent Orders or a Binding Financial Agreement, our role is to make sure what you’ve agreed to is protected, fair, and future-proof.”

– Melody van der Wallen, Principal Lawyer, Wallen Family Law