Reconciliation after separation may affect a binding financial agreement and future property settlement

By Catherine Heath, Principal Solicitor, Consort Family Law | Published: June 2026

Catherine Heath leads Consort Family Law, a boutique family law firm in North Sydney. She has worked only in family law for more than 25 years. She regularly advises clients on Reconciliation & Property Settlement questions, including Implied Consent & Section 79A applications and Binding Financial Agreements & Reconciliation issues.

Key points:

Reconciliation and property settlement questions come up more than most people expect. If you already had consent orders or a Binding Financial Agreement, and then you got back together, that old paperwork might not mean what you think it means. Two legal doctrines control the outcome: Implied Consent and Section 79A govern court consent orders, and Binding Financial Agreements and reconciliation rules govern BFAs. This article explains both, then studies the real case of Armando & Armando (No 2) [2026] FedCFamC1F 368 in some depth. Reconcile for two years, and it might not be enough to cancel your old orders. Reconcile for 28 years, like the couple in Armando, and a court will likely find it is enough.

Reconciliation and Property Settlement: Three Situations, Three Sets of Rules

People get back together all the time. Family lawyers see it constantly. But here’s what most people don’t realise: reconciliation and property settlement paperwork can quietly stop applying, or it can keep applying in full, depending entirely on what you did after you reconciled.

So do old property settlements still apply if you get back together? That’s the exact question this article answers, using real Australian cases.

There are three situations you might be in, and each one follows different rules.

Situation 1: You Reconciled Before You Formalised Anything

Say you separated, but you never signed a Binding Financial Agreement and never got consent orders from a court. In that case, there’s usually nothing to undo. You just pick your relationship back up, and if you separate again later, the clock starts fresh.

The main thing to watch here is timing. A break in your relationship can affect a four-year threshold for certain superannuation agreements. It can also affect whether a de facto couple can show two years together. But that’s a topic for another day — this article focuses on reconciliation and property settlement questions where formal paperwork already exists.

Situation 2: Binding Financial Agreements & Reconciliation

Did you sign a Binding Financial Agreement meant to take effect once you separated? If so, Binding Financial Agreements and reconciliation rules can affect it in a way that surprises a lot of people.

Under section 90DA of the Family Law Act 1975, a BFA’s rules about dividing property don’t actually take legal effect until someone signs a separation declaration — a formal written statement confirming you’ve separated and are living apart. So if you reconcile before anyone signs that declaration, those property rules in your BFA might never have kicked in at all. This is the single most misunderstood part of Binding Financial Agreements and Reconciliation law.

There’s a second angle too. The law treats reconciliation as a change in circumstances, and that change can support setting aside a BFA altogether — particularly where keeping it would cause hardship to a child of the relationship.

So what’s the practical lesson on Binding Financial Agreements and Reconciliation? Don’t treat a BFA as something you sign once and forget. Get advice, and find out whether your agreement’s key terms are even active, before you assume they’ll protect you if you separate again.

Situation 3: Implied Consent and Section 79A

Most of the interesting law lives here — and this is where Armando & Armando fits in.

Once a court finalises property orders under section 79 of the Family Law Act, the general rule is that you should only get one property settlement. Courts don’t want people revisiting old orders whenever they feel like it.

But section 79A allows a court to set aside or change those orders in specific situations. The most common ground is fraud or hiding information. Reconciliation works differently, under a quieter rule — and this is the essence of implied consent and Section 79A (1A). It lets a court set aside orders once all parties consent. Here’s the key part: that consent doesn’t need to be written down, or even spoken. A court can imply it from how you actually lived after getting back together.

How Courts Built the Implied Consent and Section 79A Doctrine

Over the last thirty years, the Full Court has slowly built up the rules behind implied consent and Section 79A. Let’s trace how it developed, because each case adds something new.

It began with Bourke [1994] FamCA 61.

The Full Court made a foundational point: the “consent” the law requires doesn’t need to happen at the time of the current application. A court can find that consent already existed earlier, inferred from conduct, and that it still binds the parties today. This early case set the foundation for every later ruling on implied consent and section 79A.

McCabe [1995] FamCA 147

The case added another layer. A couple’s intention isn’t fixed the moment they decide to reconcile — it can crystallise over time. As the reconciliation continues, the couple’s conduct, including how they handle money, can become inconsistent with any conclusion except one: the old orders no longer apply.

Waterman & Waterman [2017] FamCAFC 23

This is the leading modern authority on implied consent and Section 79A. The parties separated in 1998 after a 15-year relationship, signed consent orders three months later to sell the family home and split the proceeds, then reconciled only months after that. The husband argued they’d kept finances completely separate throughout. The Full Court disagreed — the wife had resumed 12 years as primary parent and homemaker, a contribution the trial judge hadn’t properly weighed — and held the old orders should be treated as impliedly set aside. The takeaway: reconciliation alone isn’t enough; any finding must be drawn from the full mix of circumstances.

Oxley & Oxley [2021] FedCFamC1A 98

shows the same test can point the other way. A couple separated in 2013, formalised orders in 2014, reconciled in 2017, then opened a joint account and bought property together after a lottery win in 2018, before separating again in 2019. The wife argued this amounted to implied consent to cancel the 2014 orders. It wasn’t enough — her application, and her appeal, both failed, and she was ordered to pay $19,260.78 in costs. Two years of reconciliation and real financial mixing still didn’t tip the balance under Implied Consent & Section 79A.

The Case Study: Armando & Armando (No 2)

This brings us to Armando & Armando (No 2) [2026] FedCFamC1F 368 — a case sitting at the opposite end of the spectrum from Oxley, both in how long the couple reconciled and in how much of their conduct contradicted the old orders.

The parties first separated in 1993 or 1994, after building a business and family trusts together. On 16 June 1994, they signed consent orders: the husband transferred the family home to the wife, who was to live there alone, and she gave up her roles in his companies and any claim to the family trusts. Clean. Final. Or so it seemed.

Then, in early 1996, the husband got sick. The couple reconciled and moved back in together — in the very home the orders said belonged to the wife alone. They stayed together for another 28 years, finally separating for good only in 2024.

When the wife applied for a new property settlement, the husband argued the 1994 orders had quietly kept working the whole time, like an unwritten, permanent prenup. Justice Williams rejected that completely, and the reasoning shows exactly how implied consent plays out when the facts stack up heavily on one side.

Considerations:

He lived in the property meant only for her — for 28 straight years, directly against the 1994 orders.

He gave her far more financial support than the orders ever required — paying the mortgage, covering the bills, and eventually paying off the home loan in full.

She risked her only asset for him. In 1996, police arrested the husband on drug charges, and the wife offered the family home as security for his bail. Asked whether the 1994 orders crossed his mind in that moment, he answered bluntly: “I was in jail. So do you think I would be thinking about anything other than trying to get out of jail?”

He mortgaged her house without asking her. In 2006, he increased the mortgage by $60,000, without telling her, to help a family company. He later apologised in writing, but when asked whether the 1994 orders were on his mind, he said no, more than once.

He set up a shared retirement fund with her, naming her director of the trustee company. He planned to leave her part of his estate in a 2007 draft will. And his own conduct in court gave him away — he waited six months and five hearings before raising the 1994 orders as a defence, and in his own sworn statement, he referred to the wealth of “Ms Armando and I.”

Justice Williams set the 1994 orders aside. The wife’s property claim can now proceed as though those old orders never existed.

Reconciliation & Property Settlement: What the Whole Body of Law Tells You

Put Bourke, McCabe, Waterman, Oxley, and Armando together, and a clear pattern emerges for Reconciliation & Property Settlement outcomes generally.

There’s no minimum reconciliation period and no fixed checklist. But two things consistently matter. First, did your conduct contradict the specific terms of the old orders? Living in a property, the orders given to someone else carry real weight. Second, did your finances genuinely mix together? Joint accounts, joint property, shared retirement planning, or one partner backing the other financially all tend to outweigh a later claim that you meant to keep things separate. Oxley shows that some financial mixing over a shorter period might still not be enough. Armando shows enough mixing, sustained for decades, that it becomes almost impossible to explain any other way.

Facing a Reconciliation & Property Settlement question of your own? Whether it involves Implied Consent & Section 79A or Binding Financial Agreements & Reconciliation, old paperwork might not mean what you think. Contact Consort Family Law in North Sydney for a confidential chat — call (02) 7252 0444.

What This Means for You

If Your Situation Involves Implied Consent & Section 79A

Did you keep living as if the old orders still applied? When moving back into a property orders given only to your ex, as in Armando, count as strong evidence.

Did your money actually merge, even a little? Joint accounts, shared property, joint super planning, or one partner backing the other financially all suggest that the old orders no longer govern you.

What did you actually do at the time, not what you say now? Courts trust evidence from the time itself — letters, bank records, cross-examination about real transactions — far more than a later account of what you “always intended.”

How did you act once new proceedings started? Waiting months to raise an old settlement as a defence, as happened in Armando, can work against you.

If Your Situation Involves Binding Financial Agreements & Reconciliation

Was a separation declaration ever signed? If not, key parts of your BFA may never have taken legal effect, regardless of what the document says.

Would keeping the agreement cause hardship to a child? That’s a separate, specific ground for setting a BFA aside.

Have you had the agreement reviewed since reconciling? Most people never do — and that’s exactly where Binding Financial Agreements & Reconciliation problems tend to surface later.

Reconciliation happens often, and most of the time it’s a good thing. But old paperwork doesn’t update itself, and that gap can matter enormously, years down the track.

Frequently Asked Questions

Implied Consent and Section 79A

Can old consent orders still apply after reconciliation?

Yes, they can — but they don’t have to. Under section 79A(1A) of the Family Law Act 1975, a court can find both partners impliedly agreed to cancel earlier orders, based on how they actually lived and managed money after reconciling. Conduct alone can be enough, as it was in Armando & Armando and Waterman & Waterman.

How does a court decide if you impliedly agreed to cancel a property settlement?

This is the central question in Implied Consent & Section 79A cases. A court looks at the whole picture — did you live in a property the old orders gave to someone else, did your finances merge, did you support each other beyond what the orders required. No single fact decides it.

Binding Financial Agreements & Reconciliation

Does a Binding Financial Agreement still work if we reconcile?

Sometimes not. A BFA’s property-division terms usually don’t take legal effect until someone signs a separation declaration. If you reconciled before that declaration was signed, those terms may never have kicked in.

What is a separation declaration and when do I need one?

It’s a written statement, signed by at least one partner to a BFA, confirming you’ve separated and are living apart. Without one, key parts of a BFA dealing with property division simply don’t take effect.

Reconciliation & Property Settlement — General

What should I do if I reconciled after a property settlement and I’m separating again?

Get advice early. Whether your old orders or BFA still apply depends heavily on exactly how you lived and handled money during the reconciliation. A specialist family lawyer can assess the strength of an Implied Consent & Section 79A argument, or check whether your Binding Financial Agreements & Reconciliation position ever properly took effect.

This article gives general information only. It isn’t legal advice. If you have a Reconciliation & Property Settlement question of your own — whether it touches Implied Consent & Section 79A or Binding Financial Agreements & Reconciliation — contact Consort Family Law in North Sydney for a confidential chat — call (02) 7252 0444.

Sources and further reading:

On Implied Consent & Section 79A:

On Binding Financial Agreements & Reconciliation:

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