Property settlements can become significantly more complex when family trusts, private companies and investment portfolios are in the mix.
Unlike a straightforward split of assets such as a home, savings and personal property, these types of financial structures often need careful legal analysis, because it’s not always clear who owns what, who controls it, and what the real value is.
Having an experienced property settlement lawyer to guide you can help identify the financial interests involved, exchange appropriate disclosure, coordinate valuations (where required) and advise how Australian family law may apply to your circumstances
Whether you are separating after a marriage or a de facto relationship, obtaining advice early can help you understand your position, manage financial risk and work towards a practical resolution
Why Trusts, Companies, and Investments Complicate Property Settlements
Individuals and families often hold wealth through structures or investments such as:
- Family trusts;
- Private companies;
- Investment properties;
- Share portfolios and managed funds;
- Self-managed super funds (SMSFs);
- Cryptocurrency and digital assets; and
- Business or partnership interests.
The name appearing on a title, share register or account is important, but legal ownership is not always the end of the enquiry.
Depending on the circumstances, the Federal Circuit and Family Court of Australia (“FCFCOA”) may consider the following:
- Who controls a structure,
- How the parties have benefited from it,
- The nature of their legal and equitable interests, and
- Whether an asset or interest should be treated as property or as a financial resource.
The outcome is highly fact-specific. A lawyer may need to examine trust deeds, company records, tax returns, financial statements and historical transactions before advising how a particular structure is likely to be treated.
How Family Trusts Are Treated in a Property Settlement
Family trusts may be established for a number of reasons, primarily the following:
- Asset management,
- Succession planning,
- Business operations or
- Taxation purposes.
When a relationship ends, the existence of a trust does not automatically mean that all trust assets will be divided between the parties.
To determine whether the trust assets are available for division, the Court may consider:
- Who established the trust;
- Who administers the trust (“the Trustee”);
- Who has the power to appoint or remove the Trustee (“the appointor”);
- Who are the trust beneficiaries;
- Whether either party has effective control over distributions;
- How trust income and assets were used during the relationship; and
- Whether there is an established history of distributions to either party or their family.
Depending on its terms and operation, a trust may be treated as either:
- Part of the property available for division,
- As a financial resource, or
- As property belonging to a separate third party.
The distinction can materially affect the outcome.
A property settlement lawyer may work with forensic accountants or other financial experts to review the trust deed, financial accounts, distribution records, loan accounts and related-party transactions.
Handling Companies and Businesses in Property Settlements
A company is a separate legal entity. Accordingly, the company’s underlying assets are not automatically treated as assets personally owned by its shareholders.
However, a party’s shares in the company—and, in some cases, loans, entitlements or other interests connected with it—may be relevant to the property settlement. The company or business may therefore need to be valued so that the value of those interests can be properly assessed.
Depending on the business, a valuation may consider:
- Company assets and liabilities;
- Historical and maintainable earnings;
- Cash flow and profitability;
- Shareholding and control structure;
- Shareholder or Director Loans;
- Goodwill
- Market conditions;
- Taxation considerations; and
- The extent to which the business depends on the personal efforts of one or both parties.
A properly prepared valuation can help the parties negotiate from an informed position. It may also assist in developing a settlement that recognises the value of the business without unnecessarily disrupting its continued operation.
There is no single valuation method suitable for every business. The appropriate approach will depend on the nature of the company, the available evidence and the purpose of the valuation.
Managing Investment Assets
Investment assets may include:
- Residential or commercial properties;
- Shares, exchange-traded funds (“ETFs”) and managed funds;
- Cryptocurrency and other digital assets;
- Bonds and fixed-interest investments;
- Investment accounts; and
- Overseas assets or investments.
These assets will generally need to be identified and valued as part of the parties’ overall financial circumstances. The relevant value may change over time, particularly where property, shares or digital assets are affected by market movements.
Capital gains tax (“CGT”), transaction costs, ownership structures and embedded liabilities may also need to be considered. These issues do not produce the same result in every case, so accounting or taxation advice may be required alongside family law advice.
A property settlement solicitor can help obtain the necessary information, determine whether expert valuation evidence is appropriate and ensure that relevant assets and liabilities are addressed in negotiations or court proceedings.
The Importance of Full and Frank Financial Disclosure
Parties to a family law financial dispute have an ongoing duty to provide information and documents relevant to their financial circumstances. This duty may extend to direct and indirect interests held through companies, trusts and other structures, and ordinarily continues until the matter is finalised.
Relevant documents may include:
- family law property settlement
- Personal and business tax returns;
- Bank and credit card statements;
- Payslips and employment records;
- Company financial statements;
- Trust deeds and trust accounts;
- Property valuations;
- Shares and investment statements;
- Superannuation records;
- Cryptocurrency exchange and wallet records; and
- Documents relating to loans and liabilities.
Failure to provide proper disclosure can have serious consequences. Depending on the circumstances, the Court may make procedural or costs orders, draw adverse inferences, decline to allow a party to rely on undisclosed material or, in some cases, set aside orders affected by non-disclosure. The precise consequence will depend on the nature and significance of the failure.
Complete disclosure also helps parties negotiate effectively. Without a reliable understanding of the financial position, it is difficult to assess whether a proposed settlement is appropriate.
Achieving a Fair Property Settlement
Australian family law does not simply apply an automatic 50/50 division. The outcome depends on the circumstances of the particular relationship.
Broadly, the process involves four (4) steps:
- Identifying the parties’ property, liabilities and financial resources;
- Assessing the parties’ contributions, both financial and non-financial;
- Considering the parties’ current future circumstances/needs; and
- Determining whether the proposed Orders are just and equitable.
Since 10 June 2025, the legislation expressly recognises the economic effect of family violence when the Court considers property and financial matters.
Some of the factors which determine the parties’ future needs include the following:
- The parties’ respective ages and health;
- The parties’ respective income-earning capacity; and
- The care arrangements for children.
As no two relationships have identical financial histories or future circumstances, outcomes in other cases should not be treated as a reliable prediction of what will happen in your matter.
Can a Property Settlement be Achieved Without Going to Court?
Many property matters are resolved through negotiation, mediation or another form of dispute resolution. If an agreement is reached, it can generally be formalised through consent orders or, where appropriate, a financial agreement.
An informal agreement may not provide the certainty or enforceability the parties expect. Consent orders are legally binding once made, and the Court must be satisfied that proposed property orders are just and equitable.
Where agreement cannot be reached, either party may be able to apply to the Court for property or financial orders.
Why Early Legal Advice Matters
Cases involving trusts, businesses, and investments require more than standard legal knowledge. They often involve accountants, financial advisers, business valuers, and tax specialists working alongside your lawyer.
Obtaining early legal advice may help you:
- Understand which assets and financial resources are relevant
- Identify information that needs to be disclosed or obtained
- Preserve important financial records;
- Assess whether a valuation is required;
- Understand potential taxation issues;
- Prevent costly disputes;
- Negotiate practical settlement outcomes.
Legal advice cannot guarantee a particular outcome, but it can help you make informed decisions and develop a strategy based on the facts of your case.
Conclusion
When family trusts, companies, and investments are involved, property settlements become considerably more complex. An experienced property settlement lawyer understands how to identify, value, and negotiate these assets while ensuring your rights are protected throughout the family law property settlement process.
For trusted legal guidance and tailored advice, visit the Tonkin Legal Group to learn how their experienced family law team can help you achieve a fair and practical property settlement. Call us on 9435 9044 or reach us by email at reception@tonkinlaw.com.