Life’s Changed Since Divorce. Can Your Agreement Change Too?
When you separate or divorce, your Consent Orders or Binding Financial Agreement (BFA) might feel final. But life doesn’t stay the same, and sometimes, your agreement needs to shift too.
Maybe your finances have changed. Maybe your kids have new needs. Or maybe new information has come to light.
Whatever the reason, it’s natural to ask: Can I change my Consent Order or vary my financial agreement?
The answer? Sometimes, yes - but how and when depends on the type of agreement you have.
At a Glance
Already have Consent Orders or BFA but need to make changes? Here’s what to know:
Consent Orders can be changed by the court, but only if there has been a significant change in circumstances, fraud, or hardship.
BFAs are harder to change, but the court can set them aside in limited situations like non-disclosure or duress.
The court applies a high threshold to modify agreements. You’ll need evidence of major change, not just regret or inconvenience.
If you both agree, it’s much easier: you can apply for a variation (Consent Orders) or draft a new agreement (BFAs).
Legal advice from a family lawyer is essential, especially if you're dealing with a financial agreement.
What Kind of Agreement Do You Have?
Before you can change anything, it helps to know which type of agreement you're working with:
Consent Orders
Court-approved documents that formalise property, financial, or parenting agreements. Once sealed by the Court, they carry the weight and enforcement of a Court Order, as well as consequences for breaches/non-compliance..
Binding Financial Agreements (BFAs)
Private legal contracts between spouses or de facto partners. These outline how property or finances will be divided and don’t require Court approval, but they must meet strict legal criteria to hold up.
Can You Change a Consent Order?
Yes… but only under certain conditions.
The Federal Circuit and Family Court of Australia won’t change Consent Orders just because one party isn’t happy anymore. Instead, you’ll need to show that something major has changed since the original Order.
Potential Reasons the Court May Agree to Change a Consent Order:
The Court will exercise its own judgment as to changes or variations to Final Orders made by Consent. Some considerations the Court may address include:
Significant changes in financial circumstances
For example, a job loss, long-term illness, or financial hardship that wasn’t foreseeable at the time the Order was made.The needs of a child have changed
Final Parenting Orders may be reviewed if there has been a major shift, like a change in health, schooling, or living arrangements.Fraud, non-disclosure or misinformation
If one party failed to disclose key financial information when the order was made, the court may vary or set aside the order under Section 79A of the Family Law Act.
If your application is successful, the Court can either vary the order or set it aside altogether. The new terms then become legally binding.
Can You Change a BFA?
Changing a Binding Financial Agreement is more complicated.
Because BFAs are designed to avoid court altogether, the Court is generally reluctant to interfere. But there are some exceptions included under Section 90K of the Family Law Act, and they're serious.
The Court May Set Aside a BFA If:
There was fraud or dishonesty
If one party entered into the agreement for the purpose of defrauding a credit or with reckless disregard of a creditThere was coercion or unfair pressure
If someone was pushed into signing the agreement or didn’t receive proper legal advice, it may be considered invalid.A material change in circumstances If upholding the BFA would cause undue harm or hardship to a child (say, by leaving one parent without the means to care for them), the Court may step in.
If the agreement is set aside, you’ll usually need to negotiate a new one, and both parties must receive fresh, independent legal advice.
What If We Both Agree to the Changes?
Good news: if you’re both on the same page, the process is much easier.
For Consent Orders
You can make a joint application to vary the Order. If the Court agrees that the changes are fair and practical (or just and equitable), it may approve the new terms.For BFAs
You’ll need to draft a new agreement or formally vary the original. But remember: legal advice is still required for both parties, or the new agreement won’t be valid.
What If You Don’t Agree?
If your ex-partner won’t agree to the changes, you may still be able to go to Court, but only if you can show there’s been a material change in circumstances.
This is where legal advice becomes crucial. A divorce lawyer can assess whether your situation meets the legal threshold and what evidence you’ll need to back it up.
What Does the Court Look For?
Whether you're asking the Court to change Consent Orders or set aside a Binding Financial Agreement, one thing is clear - you’ll need to meet a high bar. Courts don’t reopen settled agreements unless there’s a compelling reason to do so.
Here’s what judges typically consider before agreeing to any changes:
1. A Material Change in Circumstances
This is the court’s starting point. They’ll ask: What’s changed since the original Order or agreement was made?
For financial matters, this might include:
Job loss or a serious reduction in income
Long-term illness or disability affecting earning capacity
A sudden increase in financial responsibilities (e.g. caring for a dependent)
For parenting matters, changes could involve:
A child’s medical or psychological needs evolving
Relocation that affects existing arrangements
A shift in the child’s relationship with one or both parents
The change must be significant. Minor inconveniences or second thoughts usually won’t be enough.
2. Evidence That the Existing Agreement Is No Longer Fair or Practical
It’s not enough to say the current arrangement doesn’t work - you’ll need to prove it.
The court will want to see:
Financial statements showing hardship or imbalance
Reports or correspondence demonstrating parenting difficulties
Evidence of changes that were unforeseeable at the time of the original agreement
In other words, the court needs a clear picture of how your circumstances have shifted and why that shift justifies altering a legally binding arrangement.
3. Efforts to Resolve the Issue Without Litigation
Courts expect parties to try to resolve disagreements before seeking judicial intervention.
That means showing you’ve:
Attempted negotiation or informal resolution
Participated in Family Dispute Resolution (FDR) for parenting matters, unless exempt (e.g. due to family violence)
Acted reasonably and in good faith
If you’ve made no effort to communicate or negotiate with the other party, the court may see your application less favourably.
4. The Best Interests of the Child (in Parenting Cases)
When parenting arrangements are involved, the child’s welfare is paramount. The court will consider:
How the proposed change affects the child’s safety, stability, and wellbeing
Whether it maintains a meaningful relationship with both parents
The child’s views (depending on age and maturity)
Expert opinions (e.g. from psychologists or family consultants, if applicable)
Even if both parents agree, the Court won’t rubber-stamp a change unless it aligns with the child’s best interests.
5. Whether There Was Fraud, Duress, or Non-Disclosure
For BFAs especially, the Court may intervene if it finds:
One party concealed assets or financial details
The agreement was signed under pressure or without proper legal advice
These are serious claims, and you’ll need strong evidence to support them, such as legal correspondence, asset valuations, or records of threats or coercion.
When to Get Legal Advice
If your current Consent Orders or BFA no longer reflect your reality, it’s worth having your situation reviewed by a family attorney.
They can help you:
Understand whether the agreement can be changed
Prepare supporting documents and evidence
Negotiate changes with your former partner
Apply for a variation or new agreement
Need Help Changing Your Agreement?
At Hamilton Thomas Lawyers, we know that life after divorce doesn’t always go to plan. Whether you’re facing financial hardship, changing family needs, or dealing with an unfair agreement, we’re here to help.
Our family law team offers clear, strategic advice on modifying Consent Orders and BFAs and we’ll support you through every step of the process.
Book your confidential consultation today and find out where you stand.
