The one-option model, and why it’s wrong
If you’ve already started researching, you’ll have noticed that most of the conversation around separation in Australia has a binary shape. You either hire a lawyer, or you don’t. You either go to court, or you handle it yourselves. You either treat your separation as a legal matter, or you treat it as a personal one.
This binary is wrong in a specific and costly way. It collapses four genuinely different options down to two, which means most separating Australians default into either the cheapest option (an informal handshake with no legal standing) or the most expensive option (full legal representation heading toward court) without ever realising that there were two options sitting in the middle that would have been better fits for them.
The four-tier model fixes this. It replaces ‘lawyer or no lawyer’ with ‘which of these four pathways is mine?’ — and that change in framing, small as it sounds, changes everything about the decisions you’ll make in the weeks ahead.
Here are the four:
Tier Two
Binding Financial Agreement (BFA)
No court, but mandatory independent legal advice for both parties
The rest of this guide walks through each one. By the end, you’ll know roughly which pathway your situation sits closest to, what it costs, and what to do next.
Tier One
The informal agreement
A handshake. A conversation. No legal standing.
An informal agreement is whatever you and your ex decide between yourselves. A handshake. A conversation over dinner. A written document you both sign, witnessed by nobody. No lawyers, no court, no external validation. Just the two of you, deciding who keeps what.
For the right kind of couple — with no property, no superannuation worth splitting, no children, and a genuinely low likelihood of future dispute — an informal agreement is a perfectly reasonable way to handle things. It costs nothing. It takes as long as the conversation takes. It preserves autonomy. And for a significant minority of separating Australians, it’s what they actually do.
But most separating Australians aren’t in that situation. Most have at least one of: shared property, shared superannuation, children whose care needs formal arrangement, or enough relationship complexity that the risk of future dispute is meaningful. For those couples, an informal agreement is not free. It’s extremely expensive, in ways that don’t show up until later.
Tier 1: Here’s what an informal agreement actually costs you:
Informal agreements work — genuinely work — for the small subset of separating Australians who have nothing of material value to divide and a durably high level of trust with their ex. For everyone else, the ‘free’ option turns out to be the most expensive one in the room.
Tier Two
The Binding Financial Agreement
A private contract. Requires independent legal advice for both parties.
A Binding Financial Agreement, commonly abbreviated to BFA, is a legally enforceable contract between separating parties that sets out exactly how property, debts, and financial resources will be divided. BFAs can be made before a relationship (in which case most people call them pre-nups), during a relationship, or — most commonly — after separation.
When people first hear about BFAs, the word ‘binding’ does a lot of work. It sounds definitive. It sounds like the gold standard. For a particular kind of situation, it is — but ‘binding’ doesn’t mean what most people assume it means, and the cases in which a BFA genuinely beats a Consent Order are narrower than the marketing around BFAs suggests.
Tier 2: Here’s what you actually need to know.
Where BFAs are usually not the right call
For a straightforward separation involving a family home, superannuation, and a joint account or two, a BFA is typically slower, more expensive, and more fragile than the alternative sitting on the next tier. Which brings us to the single most under-known pathway in Australian family law.
Where BFAs genuinely beat Consent Orders
When the couple wants to keep the agreement fully private. BFAs aren’t filed with the court; Consent Orders are a public court record, even though they’re not tried in open court.
When the couple needs more flexibility in how terms are structured than the court would approve. Consent Orders are subject to a ‘just and equitable’ test by a court registrar; BFAs are not.
When there’s significant complexity that requires custom drafting — business interests, trusts, international assets, blended family considerations — and a template court form can’t accommodate it.
Tier Three
Consent Orders
Court-sealed. Legally binding. You never appear in court.
For the modal amicable Australian couple — two people who have genuinely agreed on how things should be divided, who have property and possibly superannuation to formalise, and who want the whole thing to be durably finished — Consent Orders are almost certainly the right answer. And most of them have never heard of them.
Here’s how it works.
You and your ex, usually with the help of a lawyer (sometimes one between you; sometimes one each), draft a document that sets out exactly how your property, superannuation, and parenting arrangements will be resolved. You both sign it. A lawyer files it with the Federal Circuit and Family Court of Australia, along with a standard application form. The court pays a filing fee — two hundred and five dollars as of July 2025. A court registrar reviews the application on paper. The registrar’s job is to check that the proposed orders are ‘just and equitable’ — not to second-guess your decisions, but to confirm you haven’t disadvantaged yourselves or any children in an obviously problematic way.
If the application passes the registrar’s review — which, with decent drafting, it almost always does — the registrar seals it. At that moment, your agreement becomes a court order with the same legal force as if you’d gone to trial. You never appeared. You never spoke to a judge. And you now have a legally binding, enforceable, court-sealed finalisation of your separation.
Tier 3: Here’s what you actually need to know.
The uncomfortable truth about Consent Orders is that the Australian legal services market has a mild economic incentive to steer couples toward BFAs and away from this pathway, because BFAs are more profitable for lawyers to produce. This is not true of every lawyer — the non-conflict firms that specialise in amicable matters actively steer couples toward Consent Orders — but it is a pattern worth being aware of. If the first lawyer you speak to recommends a BFA for a situation that sounds from your description like it would fit a Consent Order, ask them directly why they’re suggesting the more expensive option. A good lawyer will have a clear answer.
Where Consent Orders shine:
When property or superannuation needs to change hands (stamp duty and CGT relief alone often covers the legal fees several times over)
When one or both parties want durable legal certainty rather than trust-based informality
When children are involved and parenting arrangements need formal, enforceable structure
When the couple is genuinely amicable but understands that amicable doesn’t mean unprotected
Where Consent Orders aren’t the right call:
When the couple can’t actually reach agreement (Consent Orders require consent by definition; disputed matters need a different pathway)
When there’s a power imbalance, family violence, or coercion that makes genuine consent impossible
When the asset situation is so complex that a template court form can’t accommodate it (edge cases — most couples don’t hit this)
Tier Four
Litigation
Courts, judges, lawyers. The pathway people picture and rarely end up in by choice.
Litigation is the fourth pathway, and it is the pathway most separating Australians picture when they hear the phrase ‘family law.’ Courts. Judges. Lawyers in wigs. Years of conflict. Legal bills that run into six figures. It is the pathway the Australian film industry and the news media have made synonymous with separation itself.
It is also, for the vast majority of separating Australians, not the pathway they will end up on.
Current estimates suggest that around five percent of separating couples end up with a contested court hearing that runs to a final judgment. Twenty to twenty-five percent finalise formally through Consent Orders or BFAs. The rest either use informal agreements, do nothing formal at all, or resolve things through mediation and never document the outcome. The mental image of separation-equals-litigation is just wrong. It’s the minority case, not the default.
That said — and this matters — litigation exists for a reason, and pretending otherwise helps no one. There are circumstances where going to court is the correct and necessary response to a separation.
Tier 4: These include:
Which tier is right for you?
This is the question the whole guide has been leading toward, and it’s the question I can’t answer for you. Not because it’s hard, but because it genuinely depends on specifics that only you and, eventually, a lawyer can evaluate. What I can do is lay out the rough pattern that most couples fit into.
If you have no shared property, no superannuation worth splitting, no children whose care needs formal arrangement, and genuinely low conflict — tier 1 (informal) is probably fine, as long as you accept that you’re trading legal certainty for simplicity.
If you have a family home or shared superannuation, you are amicable, and you want the whole thing resolved in a way that genuinely protects both of you — tier 3 (Consent Orders) is almost certainly your answer. This is the modal case for separating Australians with any meaningful asset position, and it’s the tier most under-used relative to how well it fits.
If your situation has unusual complexity — pre-existing trusts, international holdings, specific privacy requirements, or a structure that won’t fit a template court form — tier 2 (BFA) might be genuinely right. Have this conversation with a lawyer before assuming; most couples who think they need a BFA actually don’t.
If there’s violence, coercion, non-disclosure, or genuine irreconcilable conflict — tier 4 (litigation) is the right response, and earlier is better than later. Don’t try to stay on a lower tier out of a sense that amicable is morally superior. Safety and fairness matter more than the pathway name.
If you’re unsure — and most readers at this point probably are — the right next step is not another article. It’s a conversation with someone who can hear the specifics of your situation and tell you, in thirty minutes, which pathway fits. That conversation ideally happens with a Family Dispute Resolution practitioner (who sits upstream of all four tiers and can help you figure out whether you’re genuinely aligned with your ex) or with a non-conflict family lawyer (who won’t steer you toward the tier that’s most profitable for them, because their whole practice model is built on the tier that fits you).
Comparison
How the four tiers stack up
A quick reference to help you understand the differences
Tier 04
Litigation
Courts, judges, lawyers. The pathway people picture — and rarely end up by choice.
COST
$30,000+ per party
TIMEFRAME
1 – 3 years
ENFORCEABILITY
Full court judgment
Stamp duty + CGT relief
You appear in court
Requires lawyer
~5% of separations
How to find the right conversation
Most separating Australians, when they decide to get legal advice, book the first family lawyer they find. A search result. A Google Maps pin. A name dropped by a friend whose cousin went through a divorce. And for the majority of them, this single decision — made in twenty minutes, on a day already loaded with emotional weight — is the decision that determines which of the four tiers they end up on. Not because that first lawyer is dishonest, but because every family lawyer is shaped by the kinds of matters their practice is built to handle. A litigation-focused firm will see your matter through a litigation frame. A non-conflict firm will see the same matter through an amicable frame. Your facts haven’t changed. The pathway you end up on has.
So the single most valuable thing you can do, before you book your first consultation, is figure out which kind of lawyer your situation calls for.
For amicable couples with property, super, or children — the large majority of separating Australians who are going to formalise their separation in some way — the right kind of lawyer is one of three types:
A non-conflict firm
Firms like Kate Austin Family Law (Sydney and Brisbane) or Amicable Family Law (Perth) have built their entire practice around working only with amicable couples. They explicitly refuse litigation work. They tend to specialise in Consent Orders and BFAs. Their whole business model is built around helping couples like the ones this guide has been describing.
A collaboratively-trained lawyer
Lawyers who have trained in Collaborative Practice work under a formal agreement that if the matter ends up heading to court, they have to resign and the couple needs to start again with new lawyers. This is, counter-intuitively, a feature rather than a bug — it aligns the lawyer’s incentives firmly on the side of resolution. The International Academy of Collaborative Professionals maintains a register of accredited Collaborative lawyers in Australia.
An Accredited Family Law Specialist with a non-litigation lean
Not every amicable-matter specialist works at a non-conflict firm. Many Accredited Specialists in more traditional firms handle amicable matters well and will steer you appropriately — but you need to check, and the check is as simple as asking them directly, in your first consultation: ‘What proportion of your current matters are Consent Orders, and what proportion are heading toward litigation?’ The answer will tell you, more reliably than any marketing copy, whether you’ve found the right person.
Beyond Separation’s directory at beyondseparation.com.au/find-support filters for these kinds of practitioners specifically, because finding them is the single most leveraged decision in the first month of a separation. If you do nothing else after reading this guide, choose your first conversation carefully. Everything that follows is shaped by it.
The thing I wish someone had told me
I want to close with something that isn’t really about law, because by this point in the guide the legal terrain is covered and the more important point is the one underneath it.
If you’re separating, or about to be, you are going to spend the next weeks and months making a series of decisions while running on emotional fumes. Some of them will be about the kids. Some will be about money. Some will be about where to live. And one of them — the one this guide is about — will be about which legal pathway you end up on.
The thing I wish more people knew is this: that decision, the legal pathway one, is the decision that compounds. Almost every other decision you make in the first three months of a separation can be revisited if you get it wrong. Where the kids sleep this week can change next week. Who keeps the dog can be renegotiated. The apartment you take as a temporary landing pad can be swapped out for a better one. But the legal pathway you end up on determines whether you spend six weeks and five thousand dollars resolving things, or eighteen months and fifty thousand dollars, and that difference rarely gets undone.
This isn’t a reason to panic. It’s a reason to take one decision seriously and give it more thought than you might feel you have capacity for right now. The four tiers exist. The pathway that fits your situation is probably clearer than it feels. And the right first conversation — with the right kind of practitioner, asking the right kind of questions — can save you a year of your life.
You’re going to get through this. But you don’t have to figure it out on your own.
If you’d like help figuring out which tier is likely right for your situation, our five-question assessment at beyondseparation.com.au/assessment takes about 90 seconds and gives you a starting point.
If you’ve already got a sense of where you’re likely heading, our directory at beyondseparation.com.au/find-support connects you with family lawyers and Family Dispute Resolution practitioners whose practices fit the amicable-matter profile described in this guide.
If you’d prefer to think it through for a few days before speaking to anyone, our Separation Starter Kit — five structured tools including the First 72 Hours Guide and the Separation Navigator — is available at beyondseparation.com.au/starter-kit for $27.
