Complex assets in settlements

What counts as “complex”?

In our pricing structure, a matter moves from the Essentials package to Full Service (for consent orders), or from Simple BFA to Complex BFA, when any one of these is present:

• A business linked to a trust (e.g. “ABC Pty Ltd as trustee for the Smith Family Trust”)
• An interest in any other trust — family trust, unit trust, SMSF — in any role (beneficiary, trustee, appointor), whether or not it's being divided
• Combined net assets over the threshold specified in the quote tool
• An existing BFA or court order that needs to be unwound or accounted for
• (For BFAs) an existing or imminent proceeding, communication difficulties, or the need for an interpreter

If you have any of these, the complex packages are usually mandatory. The quote tool will route you automatically.

The reason isn't that we're being precious — it's that these matters need more drafting, more due diligence, and often coordination with other professionals (accountants, valuers, SMSF specialists). Fixed-fee pricing only works if the work is bounded; complex matters move you into a higher fixed-fee tier rather than blowing out hourly.

Businesses

Does a business need to be included in the settlement?

Yes. Even a sole-trader business with no current profit must be disclosed. If it has an ABN and is operational, it's part of the asset pool. The settlement documents need to address it.

In practice, sole-trader businesses in service professions (a GP, a tradie, a consultant) are typically retained by the operating party with an order that the other party has no interest in it. The value isn't usually contested — the business doesn't run without the operator.

What if the business has been wound up?

If the business has been completely wound up, deregistered, and all associated debts resolved, it may not need to be included. But if it technically still exists — the company is still registered with ASIC, the ABN is still active — it should be disclosed and included in the orders with a note that it has been wound up and has nil value. This ensures both parties formally sign off on having no interest in it, closing the door on any future claim.

What about shares in a private company?

Shares in a private company — including shares that give a party a de facto interest in a business, even if not formally a “business” in the everyday sense — are an asset. They get disclosed at their current value and either:

• retained by the holding party, with the other party receiving compensating value from other assets, or
• formally transferred to the other party (if the parties agree)

How is a business valued?

Different approaches depending on the business:

• Sole-trader service businesses are often treated as having minimal goodwill — the business is the operator. Disclosed at book value or nominal value.
• Incorporated trading businesses can be valued by a specialist business valuer. The valuation considers profit, goodwill, asset value, and market context.
• Asset-holding companies (e.g. a company holding investment properties) are valued by reference to the underlying assets.

Where a formal valuation is needed, that's an additional cost to the property settlement legal fees — typically engaging a chartered accountant or specialist business valuer.

What if we want to keep running the business together?

It's possible to continue running a jointly-owned business after separation, but the settlement documents need careful drafting. Typical mechanisms:

• First right of refusal — one party can buy out the other's share at a future point, at an agreed valuation method.
• Buyout trigger — the buyout happens automatically at a defined date or event.
• Sealed bid process — if the parties can't agree on a buyout, a sealed-bid mechanism breaks the tie.

The point of including a buyout mechanism: an indefinite joint business arrangement post-separation is rarely sustainable. The settlement creates an eventual clean break, even if the immediate operation continues.

Trusts

Does a trust need to be included?

Yes. If either party has any role in a trust — beneficiary, trustee, appointor, or otherwise — and whether or not the trust is being divided, the trust must be disclosed in the application. Even if the trust has no current assets, it must be listed because it's a financial resource.

This includes:

• Family discretionary trusts — common for asset protection, tax planning, and intergenerational wealth structures
• Unit trusts — including those holding business assets or investment properties
• Self-managed super funds (SMSFs) — a super fund but also a trust structure (covered separately below)
• Testamentary trusts — trusts created by a will
• Bare trusts — including nominee structures

How does the court treat a family discretionary trust?

A family discretionary trust is one of the more complex assets in family law. The treatment depends on the level of control:

• If one party controls the trust (typically as trustee or appointor), the court may treat the trust's assets as effectively available to that party. The trust isn't a black box.
• If a party is a beneficiary but doesn't control the trust (e.g. they're one of several beneficiaries with no power of appointment), the treatment is more nuanced. The trust may be a financial resource the party can access, or it may not.

Either way, the trust must be disclosed and addressed in the orders. Where the trust is being treated as part of the asset pool, additional drafting is required and complex-package pricing applies.

Can a BFA protect assets held in a trust?

Yes. A BFA can specify that a trust — including a family discretionary trust — is solely the financial interest of one party and that the other waives any claim against it. The drafting needs care, particularly if the other party is a named beneficiary or has received benefits from the trust during the relationship.

A trust clause that simply says “the [Trust] is X's separate property” may not be enough where the other party is a beneficiary. The BFA may need to deal with:

• the beneficiary's expectations or entitlements
• benefits already received from the trust
• the trustee structure (who can change beneficiaries, distribute income, etc.)

This is the kind of drafting that gets done at the Complex BFA tier and benefits from coordinated tax and trust-law advice.

CGT rollover does not extend to trusts

The CGT rollover relief that applies to direct transfers between spouses under family law does not extend to transfers into or out of trusts. If property is to be transferred to a trust structure as part of the settlement, the CGT consequences need to be separately considered and advice from a tax specialist is recommended.

Self-Managed Super Funds (SMSFs)

What makes an SMSF complex?

An SMSF is both a superannuation account and a trustee-managed entity. Splitting an SMSF requires coordination with the SMSF trustee, may require the liquidation of fund assets, and involves compliance with super law on top of family law.

The complications:

• Trustee coordination. The SMSF trustee is typically one or both of the separating parties. If the trustee is the member who's losing super, they have a conflict that needs careful management.
• Asset liquidation. SMSFs often hold property, shares, or other illiquid assets. Splitting the fund may require selling assets to fund the transfer to the receiving party's super.
• Compliance. Super splits must comply with super law as well as family law.
• Higher costs. The legal work, accounting work, and SMSF specialist work add up.

For matters involving SMSFs, we typically recommend engaging an SMSF specialist accountant alongside the family lawyer.

Can an SMSF be split under consent orders?

Yes, but with more complexity than a standard super split. The orders address:

• the proposed split of the SMSF balance
• which assets are to be retained, sold, or transferred
• how the SMSF trustee structure is to be managed after the split

For most SMSFs, the cleanest path is to wind up the SMSF as part of the orders. The trustee liquidates the assets, pays any tax obligations, and distributes the remaining balance in accordance with the agreed split — typically with the receiving party rolling their share into a different super fund (industry, retail, or a new SMSF of their own).

What if one party wants to keep the SMSF?

That's possible. The orders can specify that the SMSF continues with one party as the sole member, and the other party's share is rolled out to a different fund. The continuing trustee structure needs to comply with SMSF rules (e.g. a single-member SMSF needs a corporate trustee or two individual trustees, one of whom isn't the member).

Off-setting an SMSF against other assets

For unequal SMSF balances, off-setting against property or cash is often the cleaner path than splitting the SMSF itself. See Super splits explained for the off-set approach.

Shares and investments

Listed shares (ASX, NYSE, equivalent)

Listed shares are valued at their current market price on the date of the application and included in the asset pool. Disposition options:

• Transfer in specie — shares transferred from one party's brokerage account to the other's. No sale required. CGT rollover applies for spousal transfers under court order or BFA.
• Sale and proceeds divided — shares are sold, the proceeds are split. CGT applies to the seller.
• Off-set against other assets — one party keeps the shares, the other receives compensating value elsewhere.

The choice depends on each party's preference and the tax position.

Unvested or restricted employee shares

Employee shares that haven't yet vested — typically subject to time-based or performance-based vesting conditions — are a more complex asset. They're disclosed but may not be immediately divisible because:

• the vesting conditions might not be met (the shares may never have value)
• transferring them may breach the terms of the employee scheme
• the value at vesting may be very different from the value today

Common treatments:

• listed as a financial resource in the orders rather than included in the immediately divisible asset pool
• divided as and when they vest, with a separate undertaking in the orders
• valued at a discount to face value to reflect vesting risk, and off-set against other assets

This is the kind of drafting that benefits from coordinated advice with a tax specialist and the employer's HR or scheme administrator.

Managed funds, ETFs, and other investments

Treated similarly to listed shares. Valued at current market value, transferred in specie or sold and divided. CGT rollover applies to spousal transfers under family law.

Cryptocurrency

How is crypto treated?

Cryptocurrency is treated as an investment asset. It's disclosed at its current value and included in the property pool. From there, it can be:

• divided in specie (transferred to the other party's wallet)
• sold and proceeds divided
• retained by the holder with the other party receiving equivalent value elsewhere

There's no special treatment for crypto — it's an asset like any other.

CGT and crypto

Transfers between spouses or former de facto partners under a court order or BFA qualify for CGT rollover relief. The receiving party inherits the original cost base, and CGT is triggered when they later sell.

This is meaningful for crypto because of the volatility — a transferred coin may have a cost base far below its current value, and the eventual sale by the receiving party will trigger CGT on the gain from that original cost base.

Volatility considerations

The price of crypto can move significantly between the date of valuation, the date of orders, and the date of any actual transfer. Where crypto is a material portion of the asset pool, the settlement documents should address:

• the value at the date of disclosure
• how to handle material movements between valuation and transfer (a re-valuation clause, a time-window for completion)
• which party bears the volatility risk during that window

For small crypto holdings, a fixed dollar approach is usually fine. For large holdings, the structure deserves more careful thought.

Disclosure obligation

Crypto must be disclosed even if held in a self-custody wallet that's not connected to any exchange or institution. The duty to disclose applies regardless of how the asset is held. Failure to disclose crypto holdings has been a documented ground for setting aside settlements.

Overseas property and assets

Disclosure

Overseas property must be disclosed as part of full asset disclosure. The duty applies regardless of where the asset is located.

Effect of Australian orders on overseas assets

Australian consent orders bind the parties personally, but they don't have direct effect on foreign land title registries or other foreign property regimes.

An order requiring one party to transfer an overseas property is enforceable as a personal obligation — the party ordered to transfer must take whatever steps are necessary under the local law of that country. Separate legal action in the relevant foreign jurisdiction is typically required.

What this means in practice

• The Australian orders provide the legal basis and the personal obligation.
• The actual title change happens under the law of the country where the property is located.
• Foreign legal advice is needed alongside the Australian advice.
• Some countries' legal systems make this straightforward; others (particularly common-law jurisdictions like New Zealand, the UK, Canada) are easier than civil-law jurisdictions.

What's involved practically

If you have overseas assets, flag them at intake. Depending on the location and the type of asset, we may need to coordinate with:

• foreign-jurisdiction lawyers (for property transfers)
• tax advisors familiar with the relevant treaties
• foreign-currency considerations

Foreign-currency assets

Foreign bank accounts, share holdings in overseas markets, and overseas pensions are treated similarly to their Australian equivalents — valued at the AUD-equivalent at the date of disclosure, with the same considerations about volatility and timing.

Special case — foreign superannuation/pension equivalents

Many countries have superannuation-equivalent pension schemes (UK pensions, US 401(k), NZ KiwiSaver, etc.). These can usually be disclosed and valued, but the Australian family-law super-splitting mechanism doesn't apply to them. The settlement may need to address these differently — often by off-setting against other assets rather than attempting a direct split.

What about overseas property in a BFA?

A BFA can cover overseas assets, but the same constraints apply. The BFA binds the parties personally as a contract; it doesn't have direct effect on foreign property law.

For an Australian BFA dealing with overseas assets, the practical approach is usually:

• the BFA acknowledges the overseas asset and specifies who keeps it
• the parties undertake to take whatever steps are needed in the foreign jurisdiction to give effect to the agreement
• where appropriate, parallel legal documentation is prepared in the foreign jurisdiction

ASIC searches and due diligence

Where one party has significant business interests, an ASIC company search (currently around $10) can reveal:

• current directorships
• companies in which the party is a shareholder
• any outstanding judgments or restrictions
• recent company changes (e.g. director resignations)

This is a useful due-diligence step where there's any concern about undisclosed business interests. The cost is minimal and the information is from the public record.

For trusts, similar searches are not directly available — disclosure depends on the parties being honest about their interests.

Pricing implications

The instant-quote tool walks through these factors and routes to the right package automatically. See the pricing page for the current fees on each tier.

When you'll want other professionals involved

Family law sits in the middle of a few other professional domains. Complex matters often benefit from coordinated advice:

• Business valuer — for businesses with meaningful value, profit history, or goodwill
• Tax advisor / accountant — for CGT on share or property transfers, especially where trusts are involved
• SMSF specialist accountant — for any SMSF-related work
• Estate-planning lawyer — to align the settlement with updated wills, especially in blended families
• Conveyancer or settlement agent — for any property transfers
• Foreign lawyers — for overseas property
• Financial advisor — to model the long-term implications of different settlement structures (super split vs off-set, etc.)

We work with networks of these professionals and can refer you. The family lawyer remains the coordinator — we make sure the settlement documents reflect everything correctly.

Common questions

What if my partner has a business and won't disclose its financials?

Disclosure is a legal requirement. If your partner refuses to provide business financials, options include:

• making formal disclosure requests through lawyers
• conducting ASIC searches and other public-record checks
• serving subpoenas (if the matter is in litigation)
• considering whether to proceed as a BFA (which has a different disclosure dynamic) or as contested proceedings

In severely uncooperative situations, the matter may not be suitable for our fixed-fee products and may need formal litigation. We'll tell you if that's where things are heading.

Can the court look through a company or trust structure?

Yes, the court can look through entity structures where one party effectively controls the assets, especially for assessing the true financial position. Putting assets in a company name doesn't make them invisible.

Does the spouse have any rights against a trust just because they were a beneficiary?

Being a beneficiary creates an expectation but not necessarily an enforceable right — the treatment depends on the type of trust, the trust deed, and whether the party has received benefits. Discretionary trusts are particularly nuanced because the trustee has discretion over distributions. This is one of the areas where the drafting matters most.

Does goodwill in my business count?

Yes, if the business has meaningful goodwill — a recurring customer base, brand value, established systems beyond the operator personally — that's part of the value of the business. For a sole-trader professional, goodwill is usually limited or nil because the business is the person. For a multi-staff business with documented systems, goodwill can be material.

What if we have an investment property in Bali / NZ / the UK?

The property must be disclosed. The Australian orders or BFA can address it, but actual transfer of title typically requires action under the local law. We can coordinate with foreign lawyers if needed. For some jurisdictions (NZ, UK) this is relatively straightforward; for others, more involved.