You separated six months ago. You’ve had some conversations about the house, the super, the savings account. Things are still civil, more or less. But nothing is signed, nothing is filed, and somewhere in the back of your mind is the question: is what we’ve agreed actually worth anything?
The honest answer is that an informal understanding, however good-faith, is not enforceable. If your ex changes their mind next year, or circumstances shift, there’s nothing to stop them from walking away from what you both discussed over the kitchen table.
That’s not a criticism of how you’ve handled things so far. Most people start with conversation, and that’s a reasonable way to begin. The question is what you do with the agreement once you’ve reached it.
A lot of people assume that sorting out finances after separation means going to court. That assumption is wrong, and it leads people toward a much harder path than they need to take. There is a way to formalise what you’ve agreed, or what you’re working toward, without litigation. It’s called a binding financial agreement, and you can make one after you’ve already separated.
What you’ll find in this article: a clear explanation of what a post-separation financial agreement is, how it works, how it compares to other options, and what to do next if you’re ready to start.
Key Takeaways
- You can make a financial agreement after separation. You don’t need to wait for divorce, and you don’t need to go to court.
- An informal agreement is not enforceable. Without a signed, legally compliant document, either party can walk away from what was discussed.
- Both of you must get independent legal advice for the agreement to be binding. One lawyer cannot act for you both.
- A financial agreement can cover property, money and superannuation, but parenting arrangements are dealt with separately.
- Time limits apply to court proceedings, not to financial agreements themselves, but delay still carries risk.
- A binding financial agreement can be set aside by a court in limited circumstances, so the quality of the process matters as much as the signature.
Can we make a financial agreement after we separate?
Yes. You can make a binding financial agreement after your relationship ends, whether you were married or in a de facto relationship. The Family Law Act expressly provides for this. Separation is the starting point, not a barrier.
What surprises many people is that you don’t need to have resolved everything before you start. Some couples come in with a rough outline of what they want to do. Others come in with very little agreed. Both situations are workable.
The agreement doesn’t need to be made immediately after separation, but waiting has risks. While the law doesn’t impose a deadline on making a financial agreement itself, there are time limits on starting court proceedings if negotiations fall apart. Knowing those limits is part of making an informed decision about how long you can afford to take.
If you’re worried your ex might take action to move assets, or if the family home is at risk, the first practical step is to get advice quickly. A solicitor can help you understand what interim protections are available while you work toward a longer-term arrangement.
Key Point: The question isn’t whether you can make a financial agreement after separation. You can. The real question is whether it’s the right tool for your situation, and whether you can put one in place that will hold up later.
What does a post-separation financial agreement actually cover?
A financial agreement can deal with the full range of property and financial matters between you. That includes:
- Real property, including the family home, investment properties and land
- Bank accounts, savings and investments
- Superannuation interests
- Business interests
- Debts, including mortgages, loans and credit cards
- Spousal maintenance, either providing for it or agreeing to exclude it
What it doesn’t cover is parenting arrangements. Who the children live with, how much time they spend with each parent, and how decisions get made about their lives are separate questions, dealt with through parenting plans or parenting orders. The two processes run in parallel, but they don’t merge into a single document.
That said, your parenting arrangements will affect your financial settlement in practical ways. If you’re the parent the children live with most of the time, you may need to stay in the family home, or you may need more in the settlement to cover the costs of day-to-day care. A financial agreement needs to be drafted with those practical realities in mind, even if it doesn’t address parenting directly.
Expert Tip: Don’t finalise your financial agreement before your parenting arrangements are at least broadly settled. A housing decision made without knowing where the children will live is often a decision you’ll regret.
Do you need to be divorced before signing a financial agreement?
No. You can make a financial agreement at any point after separation, and you don’t need to wait for a divorce to be granted. In fact, for many couples, the financial agreement comes long before divorce. Separation and divorce are two separate legal events, and property settlement doesn’t depend on either.
For de facto couples, the position is similar. Separation from a de facto relationship triggers the same property settlement framework under the Family Law Act. You don’t need to have formalised anything about the relationship itself in order to make a binding financial agreement about how to divide what you built together.
The practical implication is that you can get your finances resolved, the house transferred, the superannuation split actioned, and your financial lives genuinely separated, before you ever file a divorce application. Many people find that order of events far more manageable.
Key Point: Don’t wait for the divorce to sort out your property. By the time a divorce comes through, the 12-month time limit on starting property proceedings for married couples is already ticking.
How is a financial agreement different from consent orders?
Both a binding financial agreement and consent orders achieve a similar outcome: they formally record how your property will be divided and make that arrangement enforceable. But they work differently, and the right choice depends on your circumstances.
Consent orders are approved by the Federal Circuit and Family Court of Australia. You and your ex agree on the terms, your lawyers document those terms in an application, and a registrar reviews the agreement to check that it’s just and equitable before approving it. There’s a court filing fee involved. Once approved, consent orders are enforceable as court orders.
A binding financial agreement is a private contract. It doesn’t go before a court for approval. This gives you more flexibility, including the ability to record terms a court might not approve, such as a specific maintenance arrangement or an agreed division that doesn’t fit neatly into the court’s assessment of what’s fair. The trade-off is that no one checks your work. The agreement stands or falls on whether it meets the legal requirements and whether it can survive challenge later.
There are situations where one option is clearly better than the other. Consent orders tend to suit straightforward arrangements where the outcome is clearly fair to both sides and you want the court’s stamp of approval. Financial agreements tend to suit situations where privacy matters, where the terms are more complex, or where one or both parties want more control over the process.
Expert Tip: If you’re unsure which option suits you, that’s the right question to bring to your first appointment. The answer depends on what you’ve agreed, what your asset pool looks like, and how confident you are that the arrangement will hold.
What makes a financial agreement legally binding?
This is where a lot of agreements fall apart, and where “we did it ourselves” becomes expensive to fix.
For a financial agreement to be binding under the Family Law Act, it must meet specific requirements:
- It must be in writing and signed by both of you.
- Before signing, each of you must receive independent legal advice from a separate lawyer about the effect of the agreement on your rights, and the advantages and disadvantages of making the agreement for you personally.
- Each lawyer must sign a statement confirming that advice was given.
- That signed statement must be attached to the agreement.
- The agreement must not have been terminated or set aside.
The independent legal advice requirement is not a formality. It’s what gives the agreement its legal foundation. One lawyer cannot advise you both. A lawyer who acts for your ex has a conflict of interest and cannot give you independent advice, no matter how amicable things are.
People sometimes try to cut corners here because they’re trying to save money. But an agreement that doesn’t meet these requirements isn’t a binding financial agreement. It’s a piece of paper that can be ignored or challenged, which means you’ve spent time and money on something that gives you no protection at all.
Full financial disclosure by both parties is also essential. Each of you needs to know what the other has before you can make an informed decision. An agreement made without proper disclosure is one of the grounds on which a court can later set it aside.
Key Point: Independent legal advice isn’t a bureaucratic hurdle. It’s what makes the agreement real. If your ex suggests sharing a lawyer to save money, that’s a sign to slow down, not speed up.
What are you entitled to in a property settlement?
There is no formula. There is no default percentage. The law requires a result that is just and equitable in your specific circumstances, and what that means varies considerably from one couple to the next.
In broad terms, a property settlement involves working through four steps:
First, you identify the total asset pool: everything you both own and owe, including property, savings, super, businesses and debts.
Second, you look at contributions. That includes financial contributions, such as income, inheritance and assets brought into the relationship, but also non-financial contributions, such as care of children, homemaking and supporting a partner’s career.
Third, you look at future needs. If one of you earns significantly more, has better employment prospects, has caring responsibilities for children, or has a health condition that affects earning capacity, those factors all influence what a fair outcome looks like.
Fourth, the overall outcome is assessed against the standard of what is just and equitable.
The biggest myth about property settlement is that time in the relationship determines the split. It’s a factor, not the answer. Two people who were together for seven years might reach very different outcomes depending on what they each contributed, what they each need going forward, and what they each agreed to take on after separation.
Expert Tip: Before any negotiation, do a complete stocktake of your assets and debts. That includes your own super, which many people forget to check. You cannot negotiate a fair outcome if you don’t know what’s in the pool.
Does a financial agreement decide what happens with the kids?
No. A binding financial agreement cannot determine parenting arrangements. Questions about who the children live with, how much time they spend with each parent, and how decisions are made about their education, health and welfare are governed by a separate framework under the Family Law Act. Those matters are either recorded in a parenting plan or formalised through parenting orders.
That said, the two things are deeply connected in practice. Where the children live affects who needs the family home. Who carries the greater day-to-day care load affects earning capacity, career interruptions, and what a fair financial outcome looks like. A financial agreement drafted in isolation from the parenting reality can feel very different six months after it’s signed.
If you’re working through parenting arrangements at the same time as your financial settlement, it makes sense to let those conversations run together, even if the legal documents are separate.
Key Point: Parenting and finances are separate legal tracks, but they affect each other at every practical level. Work through both with the full picture in mind.
How long do you have to sort out property after separation?
The time limits apply to starting court proceedings, not to making a financial agreement.
For married couples, the time limit to apply to the Federal Circuit and Family Court of Australia for property orders is 12 months from the date the divorce order takes effect. For de facto couples, it’s two years from the date of separation.
If you’re within those windows, you have options. If you’ve passed them, you can still apply to the court, but you’ll need leave, which means permission, and you’ll need to show why the delay should be excused. That’s an additional hurdle, and not all applications succeed.
Here’s the important thing: a binding financial agreement doesn’t have a statutory deadline. You can make one outside those time limits. But making one outside the limits means you’re no longer protected by the ability to go to court as a backstop if negotiations fail. That changes your negotiating position.
The practical message is this: don’t treat the absence of a strict deadline as permission to let things drift. The longer your financial lives remain entangled, the more complicated the untangling becomes.
Expert Tip: If you’ve been separated for more than a year and haven’t started any formal process, get advice now. Not because you’ve necessarily missed anything, but because you need to know where you stand before you can make a good decision.
How long does a financial agreement take to put in place?
A straightforward financial agreement, where both parties have their information ready and are broadly in agreement on terms, can be completed in four to eight weeks. More complex situations, where there are businesses, trusts, significant superannuation, or disagreement about values or terms, take longer.
The main variables are how quickly both parties gather their financial information, how many rounds of negotiation are needed, and how promptly each person gets independent legal advice on the final draft.
Delaying at any of those stages extends the timeline. If your ex is slow to disclose, or changes position during negotiations, or has difficulty finding their own solicitor, the process takes longer. Those delays are not always within your control, but choosing a solicitor with experience in financial agreements can help you keep the process moving at your end.
Key Point: Four to eight weeks is realistic for a straightforward matter. If someone tells you a financial agreement can be done in a week, ask what’s being skipped.
What will a financial agreement cost, and who pays?
The cost of a binding financial agreement depends on the complexity of your asset pool, the number of negotiations required, and whether both parties cooperate with the process.
A straightforward financial agreement for a couple with a home, some super and modest savings will cost less than one involving a business, a trust, investment properties, or significant superannuation. Legal costs generally reflect the time involved on both sides.
As a general principle, each party pays their own legal costs. That is worth noting: two sets of legal fees are required, because two separate lawyers must be involved. Attempts to share a lawyer to save money will not produce a binding financial agreement, and will likely cost more in the long run when the problem has to be fixed.
The comparison that matters is not the cost of a financial agreement versus no agreement. It’s the cost of a financial agreement versus contested court proceedings, where costs can run to a multiple of what a negotiated agreement would have cost, and where the outcome is in someone else’s hands.
If you’d like a clearer sense of what your situation is likely to cost, a confidential initial conversation with the C + K Family Lawyers team is a practical first step.
Expert Tip: Ask your solicitor to give you a realistic cost estimate before you start, not just an hourly rate. Understanding the likely range helps you make a decision about proportionality: whether the legal cost makes sense relative to what’s at stake.
Can you still negotiate if things are tense between you?
Yes. You don’t need to be on good terms with your ex to reach a financial agreement. In fact, some of the most effective negotiations happen between people who would rather not speak to each other at all, because the solicitors handle the communication.
What you do need is a willingness on both sides to engage with the process, provide financial disclosure, and ultimately sign an agreement. If one party refuses to participate, a financial agreement isn’t possible, and court proceedings may be the only path.
Where things are tense but not completely broken down, solicitor-led negotiation often works well. Each of you gives instructions to your own solicitor, the solicitors exchange correspondence and negotiate on your behalf, and you don’t need to be in the same room. If there are more complex issues to work through, mediation with a family dispute resolution practitioner can assist before or alongside the legal drafting process.
Family violence or a significant power imbalance between parties does affect how negotiations should be structured. If you’re in that situation, say so when you first contact us. That context changes what a safe and fair process looks like.
Key Point: Tense doesn’t mean impossible. It means you need the right structure around the process. That’s what experienced family lawyers are for.
What happens if one party hides assets or won’t disclose information?
Full and frank financial disclosure by both parties is a legal requirement, not a courtesy. Each of you must disclose all of your assets, liabilities, income and financial resources before a binding financial agreement can properly be made.
If someone withholds or misrepresents financial information, the agreement made on that basis is vulnerable. A court can set aside a binding financial agreement where it was obtained through fraud, including non-disclosure of a material matter. That means an agreement your ex signs based on incomplete information could later be unwound, even years after the fact.
If you suspect your ex is hiding assets, that concern should be raised with your solicitor before the agreement is finalised, not after. There are steps that can be taken to investigate and to protect you if the suspicion is well founded.
If your ex is refusing to disclose at all, a financial agreement isn’t the right tool. Court proceedings come with compulsory disclosure obligations, and non-compliance has consequences. That’s one of the situations where the court pathway, despite its cost and delay, provides protections that a private agreement cannot.
Expert Tip: If something doesn’t add up in what your ex has disclosed, raise it with your solicitor. A financial agreement built on incomplete information is a risk you carry, not a problem solved.
Can a financial agreement be changed or cancelled later?
A binding financial agreement can be set aside or terminated in limited circumstances. It’s not impossible to undo, but it’s not easy either, and that’s by design. The legal certainty the agreement provides depends on it being difficult to challenge without good reason.
The grounds on which a court can set aside a financial agreement include:
- Fraud, including non-disclosure of a material matter
- A party’s failure to comply with the agreement
- Circumstances that have arisen since the agreement was made, relating to the care, welfare and development of a child of the relationship, where it would cause hardship not to set it aside
- Unconscionable conduct at the time of making the agreement
- The agreement being void or unenforceable under general contract law principles
Both parties can also agree in writing to terminate the agreement and replace it with a new one. That’s a more straightforward option where circumstances have genuinely changed and both sides want to renegotiate.
What you shouldn’t do is sign an agreement with the private assumption that you’ll undo it later if you change your mind. That’s not how it works. A binding financial agreement is intended to be final.
Key Point: “Binding” means what it says. Sign it when you mean it, with full information and proper advice behind you.
Will a financial agreement keep you out of court?
In most cases, yes. That is the purpose of a binding financial agreement: to resolve property and financial matters without the cost, delay and uncertainty of court proceedings. For couples who can reach agreement, it is almost always faster and less expensive than litigation.
It won’t keep you out of court in every scenario. If one party later applies to set the agreement aside, court proceedings follow. If the agreement is silent on something that later becomes disputed, court may be the only avenue. And if the agreement isn’t enforceable because the formal requirements weren’t met, it provides no protection at all.
The best way to make sure your agreement does its job is to do it properly: full disclosure, proper independent legal advice for both of you, a carefully drafted document that covers what it needs to cover, and signatures that are genuine and informed. Cut corners on any of those elements and you’re not getting the certainty you came for.
Expert Tip: A financial agreement that keeps you out of court is one that was drafted carefully enough that there’s nothing worth fighting about later. That’s where the value of good legal advice sits.
What is the process to get a financial agreement with C + K Family Lawyers?
The process is straightforward. We start with an initial consultation where we listen to your situation, explain your options clearly, and help you understand whether a financial agreement is the right pathway for you. We won’t push you toward a particular outcome. Our job at that stage is to make sure you have the information you need to make a good decision.
If a financial agreement is the right approach, we help you gather the financial information needed for disclosure, work with you on the terms you want to achieve, and draft the agreement. We communicate directly with your ex’s solicitor through the negotiation process so you don’t have to manage that.
Once the terms are settled, we go through the agreement with you in detail, provide you with our formal advice about its effect on your rights, sign the required certificate, and witness your signature. We handle the administrative steps from there.
The process is designed to be as straightforward as possible. It won’t be entirely without stress, because these decisions matter. But it will be structured, it will be clear, and you’ll know at each stage what comes next.
Expert Tip: The more organised you are when you first come in, the faster and less expensive the process will be. Even a rough list of assets and debts is a useful starting point.
How do you start if you’re not sure what you want yet?
That’s the most common way people arrive. You don’t need to have made decisions before you speak to us. You need to understand your options before you can make good decisions, and that’s what the first conversation is for.
Come in with whatever information you have. A general sense of what you and your ex own together, what you owe, and what you’ve discussed so far is enough to have a useful first conversation.
If you’re not ready to come in yet, a practical step you can take this week: write down every asset and debt you’re aware of, including superannuation. Note what you’ve informally agreed, even if it was just a kitchen-table conversation. Note what’s still unresolved. That list will save you time and money when you do come in.
You don’t have to have answers to bring to us. You just have to bring yourself.
What to bring to your first appointment about a financial agreement
Coming prepared makes your first appointment more useful. You don’t need everything, but the following will help us give you practical advice from the start:
- A list of assets: property (with a rough value), bank accounts, superannuation balances, shares, vehicles, and any business interests
- A list of debts: mortgage balance, personal loans, credit card balances
- Any documents you already have, such as a valuation, a mortgage statement, or a super statement
- A note of what you and your ex have already discussed or informally agreed
- Any correspondence from your ex or their solicitor, if any has been exchanged
- Your own sense of what you’re hoping to achieve
If you don’t have everything, bring what you have. We’ll work with it.
Frequently asked questions about financial agreements after separation
Can we make a financial agreement if my ex won’t cooperate?
Not if they refuse to engage entirely. A binding financial agreement requires both parties to sign and to each receive independent legal advice. If your ex won’t participate, the alternative is to apply to the court for property orders. A family lawyer can advise you on whether that’s the right step and what it involves.
We agreed on everything months ago. Can we just write it up now?
You can document your agreement now. What you cannot do is backdate the advice or signing process. A binding financial agreement must be executed properly, including both parties receiving independent legal advice before signing. What you agreed informally is the starting point, not the finished product.
Does superannuation automatically transfer as part of a financial agreement?
A financial agreement can deal with superannuation, but the actual split requires a separate superannuation splitting order or a flagging order in conjunction with the agreement. Your solicitor will advise you on what’s needed to give effect to the superannuation component of your settlement.
My ex and I are still living together but we’ve separated. Can we still make a financial agreement?
Yes. Many separated couples continue to share a home for financial or practical reasons, including caring for children. You can be legally separated while living under the same roof, and you can make a binding financial agreement in that situation.
What if we just want to do it ourselves to save money?
You can document your own agreement, but it won’t be binding under the Family Law Act unless both of you have received independent legal advice from separate lawyers and the formal requirements are met. An agreement that doesn’t meet those requirements offers no legal protection. The cost of doing it properly is almost always less than the cost of fixing it when something goes wrong.
Where to from here
If you’ve read this far, you’re already thinking more carefully about your situation than most people do at this stage. That’s a good position to be in.
The next step is a conversation. Not a commitment to any particular outcome, just a confidential, no-obligation chat with the C + K Family Lawyers team about where things stand and what your options look like. We work with separating couples across Brisbane and the Gold Coast, and we’ll give you a straight answer about what makes sense for your circumstances.
Reach out when you’re ready.
This article is general information only and is not legal advice. Family law outcomes depend on your individual circumstances. For advice about your situation, speak with a qualified family lawyer.
About the Author
Christopher (Chris) Jones is the Principal Lawyer and co-founder of CK Family Lawyers, a Queensland family law firm. Chris advises on divorce, property settlement, parenting arrangements, binding financial agreements, mediation and domestic violence matters. After working in legal environments where clients felt depersonalised and lost in jargon, he co-founded the firm with Krystina Jones on the belief that people deserve family lawyers who genuinely care, and he works directly with his clients throughout their matters.
