Probably yes, but for less work than you might expect. A written agreement between you does not end either person's right to ask the court for a property settlement. Consent orders or a binding financial agreement do, and a lawyer prepares either from the terms you have already reached. Married couples generally have 12 months from the divorce order taking effect, and de facto partners two years from separation.
In this article
Is our agreement binding as it stands?
No. However carefully you have written it down, a private agreement about who keeps what does not stop either of you from applying to a court later. The Family Law Act 1975 (Cth) gives the court power to alter the property interests of married couples and of separated de facto partners, and a letter, an exchange of messages or a signed note at the kitchen table does not switch that power off. Only two documents do: court orders, which for an agreed settlement means consent orders, or a financial agreement that meets the requirements the Act sets for it to be binding.
The consequences go beyond the risk of a later claim. A superannuation fund splits a member's interest only under an order or an agreement made under the Act, so a promise to share the super cannot be carried out on its own. Capital gains tax rollover relief on an asset moving between separating partners applies where the transfer happens because of a court order, a binding financial agreement or an arbitration award, not a private arrangement. Victoria's duty exemption for a transfer made solely because of the breakdown of a marriage or domestic relationship depends on the State Revenue Office being satisfied that is why it was made, and orders or a binding agreement are the clearest way to show it.
How long do we have to make it final?
The Act sets time limits for applying to the court for a property settlement: 12 months from the date a divorce order takes effect for married couples, and two years from the end of the relationship for de facto partners. A later application can still be made if both of you consent, or with the court's leave, which is granted only where the court is satisfied that hardship would otherwise be caused to a party or a child. A joint application for consent orders is made with both people's consent, so the Act allows it after the period, but nothing obliges your former partner to keep consenting.
For a married couple the date that matters is the divorce, not the separation, so a couple who separated years ago and never divorced are not out of time. What changes in the meantime is the property itself: the court looks at what exists when it deals with the application, so savings, superannuation and the value of the home keep moving while nothing is final.
Separated for a while with an agreement you have never made final, and unsure whether a deadline is already running? Call (03) 9125 8355 or send an enquiry.
What are the two ways to make it final?
Consent orders are orders of the court made on a joint application, without a court case. Both of you sign an application that sets out your assets, liabilities, superannuation and income and the orders you are asking for, and the court considers it on the papers, usually without anyone attending. If the court is satisfied that the orders are just and equitable, it can make them, with the same force as orders made after a trial, and its duty, as far as practicable, is to make orders that finally determine the financial relationship between you.
A binding financial agreement is a private contract, with no court and no fairness check, and it can be signed at any time after separation. It is binding if it is signed by both of you, each of you received independent legal advice from a lawyer before signing about its effect on your rights and its advantages and disadvantages, each of you was given a statement signed by your lawyer that the advice was given, and a copy of each statement went to the other person or their lawyer. If the advice, a statement or the exchange of statements is missing, a signed agreement binds only if a court later declares it binding because it would be unjust and inequitable otherwise, so the steps are followed exactly. A court can later set one aside on limited grounds, including fraud and non-disclosure. Our guides to binding financial agreements and to how property is divided cover both in depth. For a separated couple who agree, consent orders are usually the simpler route.
What does a lawyer do with an agreement we have already reached?
Less negotiating and more checking, in four parts.
First, the pool. Full and frank disclosure is a duty each of you owes the other in property proceedings and while preparing for them, so a lawyer starts by confirming the agreement rests on the true figures: current statements for every account, loan and superannuation fund, and an appraisal or valuation for the home. Orders obtained through a failure to disclose can be set aside, so this step protects the person who benefits from the deal as much as the other.
Second, the test. The court must not make property orders, even by consent, unless it is satisfied they are just and equitable, and it considers the same matters it would at a trial: what each of you contributed, financially and as a parent or homemaker, and each person's current and future circumstances, such as age, health, earning capacity and the care of children. A couple can have good reasons for an uneven split, such as one person keeping the home in exchange for taking on the mortgage and forgoing a share of the other's super. The reasons need to be stated, so a lawyer measures your agreement against the framework, tells you plainly if the court is likely to ask questions, and sets out in the application why the agreed division is fair. If the court will not make the orders you ask for, the terms can be adjusted or recorded as a binding financial agreement instead.
Third, the mechanics. An agreement that one of you keeps the house and the other keeps their super has to become orders that work. That means who transfers the title and by when, what happens to the mortgage and the refinancing that releases the other person from it, how a superannuation split is expressed so the fund can carry it out, and a fallback if a step is missed. An order that binds a superannuation fund cannot be made unless the fund has been given procedural fairness, so the proposed orders go to the fund before the court makes them. The orders also carry the wording that finally ends each person's property claims against the other, which is the whole point.
Fourth, the follow through: lodging the application, answering any question the court raises, and making sure the transfers and payments happen by the dates the sealed orders set.
Can one lawyer act for both of us?
For a binding financial agreement, no. The Act requires each of you to receive independent legal advice from a legal practitioner, and one lawyer cannot give independent advice to both sides. For consent orders the law does not require either of you to have a lawyer at all. A lawyer advising on a settlement will in practice act for one of you only, because your interests in the outcome differ even when you agree on it, so one person usually engages a lawyer to prepare the application and the proposed orders, and the other either takes their own advice or signs as a self represented party. We act for one of you alone and say so in writing.
What does it cost?
Our fixed fee for consent orders for an agreed property settlement is $2,750 including GST. It covers advice on the agreement you have reached, the application for consent orders and the proposed orders, including splitting one superannuation interest and transferring one property, the notice the court's rules require to the super fund, filing and the sealed orders. It assumes you have exchanged full financial disclosure and that no company, trust or business is involved. A binding financial agreement is from $2,750 per party, and our fees page sets out what it covers and what costs more.
The court's filing fee for consent orders is set by regulation and paid directly to the court. You pay nothing if each of you is exempt, for example as a concession card holder, a legal aid client or someone the court exempts for financial hardship, but if only one of you is exempt the full fee applies. Anything outside a fixed fee, such as an agreement still to be negotiated, gets a written fee estimate before any substantive work begins.
How we help
Spencer Alexander Lawyers acts for people across Victoria who have reached their own agreement and want it made final without a fight. We check the agreement against the disclosure and the law, tell you plainly whether a court is likely to approve it, draft the application and the orders so the transfers and the superannuation split work, and deal with the fund and the court through to the sealed orders. Where a binding financial agreement is the better fit, we draft it or give the independent advice on one drafted elsewhere. If you have only just separated, our free first 30 days checklist sets out the practical steps. Learn more about our family law practice.
Common questions
We wrote our agreement down and both signed it. Is that enough?
No. A signed private agreement does not stop either of you from applying to the court for a property settlement later, and cannot be used to split superannuation. Consent orders or a binding financial agreement make an agreed division final.
Do we have to go to court for consent orders?
No. Consent orders are applied for on the papers and are usually made without anyone attending a hearing.
Is there a deadline for consent orders?
An application to the court for property orders must generally be made within 12 months of a divorce order taking effect, or within two years of the end of a de facto relationship. A later application needs both people's consent or the court's leave.
Can we use the same lawyer to keep the cost down?
For a binding financial agreement, no, because the law requires each of you to receive independent legal advice. For consent orders, a lawyer acts for one of you and the other can take their own advice or sign as a self represented party.
Reached an agreement and ready to make it final? We prepare consent orders and financial agreements from the terms you have already settled. Call (03) 9125 8355 or send an enquiry.
Sources: Family Law Act 1975 (Cth); Duties Act 2000 (Vic), section 44; Income Tax Assessment Act 1997 (Cth), section 126-5.
This guide reflects the law applying in Victoria as at September 2026. It is general information only, not legal advice, and does not take your circumstances into account.
