Property settlement with business interests and trusts

Complex property matters for business owners, executives, and people with significant wealth

For most separating couples, property settlement involves a home, some superannuation, and perhaps some investments. When the asset pool includes a private company, a discretionary trust, a professional practice, or assets spread across structures and countries, it becomes far more technical, and far more consequential.

This page explains how Australian courts approach property settlement in complex financial circumstances: what goes into the asset pool, how contested assets are valued, how business interests and trusts are treated, and what the process looks like.

Part of our complex family law guide. If you are planning ahead rather than separating, see our page on Binding Financial Agreements.

What goes into the asset pool

The asset pool is usually broader than people expect. It includes assets in either party’s name, interests in companies and trusts, superannuation, overseas assets, and in some cases assets held by entities a party controls, even if they don’t legally own them.

How each interest is characterised can shape the whole settlement:

	Property	Financial resource
What it is	An asset or right that belongs to a party	A source of financial support a party can expect to benefit from, but does not own or control
Example	Shares in a company, assets of a trust the party controls	Regular distributions from a family trust controlled by a parent
Effect on settlement	Included in the pool and divided	Not divided, but taken into account when adjusting each party’s share

Since 10 June 2025, the duty of full and frank financial disclosure has been set out in the Family Law Act 1975 (Cth) itself. It is ongoing and covers all assets, liabilities, income, and financial resources, including interests in entities and overseas holdings. See financial disclosure and hidden assets below.

How courts decide a property settlement

The steps courts follow are now set out in the Family Law Act:

Identify the asset pool. Each party’s property, liabilities, and financial resources are identified and valued, generally as at the date of the hearing. Contested valuations are often the main battleground in complex matters.
Assess contributions. The court considers each party’s financial contributions, such as income, inheritances, and pre-relationship assets, and non-financial contributions, such as homemaking, parenting, and supporting the other party’s career or business. It also considers the economic effect of any family violence on a party’s ability to contribute.
Consider current and future circumstances. Earning capacity, care of children, age, health, and other factors can lead to adjustments, particularly where there is a large income gap or one party has made significant career sacrifices.
Make sure the outcome is just and equitable. The court only makes orders that are just and equitable in all the circumstances.

In long relationships where wealth was built together, the result may be close to equal. In shorter relationships, or where one party brought in most of the wealth, outcomes can differ widely. There is no automatic 50/50 split.

Valuing a private business

A private business has no market price, so a forensic accountant must value it. The main approaches are:

Method	How it works	Often used for
Capitalisation of future maintainable earnings	Applies a multiple to the business’s sustainable earnings	Established, profitable businesses
Discounted cash flow	Projects future cash flows and discounts them to today’s value	Businesses with uneven or growing cash flows
Net assets	Values the business’s assets less its liabilities	Asset-heavy or holding entities, or businesses with low earnings

Assumptions drive the result: the earnings multiple, the discount rate, how the owner’s salary is treated, and how one-off items are normalised. In contested matters, the parties’ experts can differ substantially, sometimes by multiples, and the court may land on a figure neither expert proposed. Briefing an experienced forensic accountant early, and well, matters as much as legal strategy.

Personal and enterprise goodwill

Personal goodwill is value that comes from the owner’s own skills, reputation, and relationships. It can’t be sold separately from the person, so it is generally not treated as divisible property, although the income it produces is relevant to each party’s future circumstances.

Enterprise goodwill is value in the business itself: its systems, client base, brand, and processes. It would survive a sale and is included in the asset pool.

The line between the two is most often contested in professional practices, such as medical, dental, legal, accounting, and financial advisory firms. The nature of the client relationships, how transferable they are, and whether the business runs independently of its principal all affect where the line falls.

Shareholder agreements

Shareholder agreements often contain provisions that matter in a family law settlement:

pre-emption rights requiring shares to be offered to existing shareholders first
drag-along and tag-along provisions affecting how a sale can happen
buy-sell mechanisms triggered by defined events
transfer restrictions requiring board or shareholder approval.

Courts can make orders binding third parties, including companies and co-shareholders, under section 90AE of the Family Law Act for married couples and section 90TA for de facto couples. But an order to transfer shares that is legally possible may still be commercially damaging if it triggers pre-emption rights or breaches the agreement.

Structuring a settlement that achieves its financial goal without those consequences, or negotiating changes to the agreement as part of the settlement, needs family and corporate lawyers working together. As a full-service firm, we do this in-house. Read more: the family law risk hidden in your shareholders agreement.

Changes in business value after separation

Businesses don’t stand still between separation and settlement. Because property is generally valued at the time of the hearing or settlement, any increase or decrease in value is usually reflected in the pool. What matters is why the value changed:

Growth from one party’s post-separation efforts is generally credited to that party as a contribution.
Growth from market conditions or the underlying value of an asset acquired during the relationship is more likely to be shared.
A fall in value may be shared, or attributed to one party if it resulted from their conduct.

This is one reason delay can help or hurt either party, and why it pays to get advice soon after separation.

Discretionary trusts

The treatment of discretionary trusts is one of the most technically complex and actively litigated areas of Australian family law.

Kennon v Spry [2008] HCA 56: The High Court looked past a trust’s legal form to its substance. Where a party controls a trust, for example as trustee with power to distribute to themselves, the trust’s assets may be treated as that party’s property.
Woodcock (No 2) [2022] FedCFamC1F 173: The court held that a beneficiary’s rights under a discretionary trust, the right to due consideration and due administration, can be property capable of valuation, even without control of the trust.

For anyone who benefits from a family trust, including one controlled by a parent or sibling, these cases matter. The trust deed, the distribution history, the party’s influence, and the interests of other beneficiaries all affect the outcome. Read more: discretionary trusts after Woodcock.

Superannuation and SMSFs

Superannuation is treated as property. Accumulation and defined benefit interests can be split by agreement or court order under Part VIIIB of the Family Law Act, which requires specific steps, including notice to the fund’s trustee.

Self-managed super funds add complexity. Any split must comply with the fund’s trust deed and the Superannuation Industry (Supervision) Act 1993. Where the fund holds illiquid assets, such as property, business interests, or unlisted investments, the mechanics can be difficult, so it is worth involving the fund’s accountant and auditor early.

Cryptocurrency, equity, and other modern assets

Complex asset pools increasingly include cryptocurrency, unvested shares and options, carried interest in private equity or venture capital funds, intellectual property, and digital assets. Each presents valuation and disclosure challenges.

The duty of disclosure applies to all of them. Leaving out cryptocurrency or unvested equity is a breach, however hard the asset is to value, and courts are willing to draw adverse inferences when undisclosed assets come to light. Read more: modern assets and debts in separation.

Financial disclosure and hidden assets

Disclosure is a legal obligation enforced by the court, not a matter of what a party chooses to reveal. Where assets may have been hidden or undervalued, options include:

subpoenas to banks, accountants, and other third parties to produce documents
forensic accountants experienced in tracing assets and identifying anomalies
court orders compelling a party to produce documents or answer questions.

Where concealment is proven, courts can draw adverse inferences about the extent and value of hidden property, adjust the settlement, order costs against the concealing party, and set aside orders obtained through false or incomplete disclosure. Read more: how hidden assets are uncovered.

What the process looks like

A complex property matter typically moves through these stages:

Exchange of financial disclosure.
Forensic accountants briefed and valuations prepared where business or trust interests are involved.
Review of competing valuations to narrow the issues.
Mediation or a round-table conference, often with the accountants present.
If agreed, terms are documented in consent orders approved by the court.

Many complex matters settle at or before mediation, often within six months to two years depending on the complexity and degree of dispute. Where agreement isn’t possible, the matter proceeds towards a final hearing, which in heavily contested cases can take two years or more. This is why early, well-prepared negotiation is almost always preferable to litigation.

How Koffels approaches complex property matters

Property settlements involving significant business interests need commercial understanding as well as family law expertise: how a private company is structured, how a trust operates, how a shareholder agreement allocates rights, and how capital gains tax roll-over relief applies to transfers.

As a full-service firm, our family lawyers work directly with our corporate and commercial lawyers when a matter needs it, without referring you elsewhere. We work with senior forensic accountants and valuers experienced in complex proceedings.

We act for a limited number of clients in this area at any one time, so that complex matters receive senior attention throughout.

Frequently asked questions

Is my business included in a property settlement?

Usually, yes. A business interest is generally part of the asset pool and must be valued, typically by a forensic accountant. Personal goodwill tied to your skills and reputation is generally not divided, although the income it produces is considered.

Who pays for the business valuation?

It depends. Parties often agree to jointly instruct a single expert and share the cost. Where valuations are contested, each party may engage their own expert, or the court may order a single expert report.

Will I have to sell my business?

Not necessarily. Settlements are often structured so the business owner keeps the business and the other party receives other assets or a cash payment. The structure depends on the pool’s size, liquidity, and any shareholder agreement.

Can assets in a family trust be divided?

They can be. If you control the trust, its assets may be treated as your property. Even without control, your rights as a beneficiary may be property capable of valuation. The outcome depends on the trust deed and how the trust has operated.

What if my business grew after we separated?

The business is generally valued at the time of settlement or hearing, so it usually includes the growth. However, growth from your own post-separation efforts is generally credited to you as a contribution.

What if my former partner is hiding assets?

Courts have strong powers where non-disclosure is suspected, including subpoenas to third parties and orders to produce documents. Where concealment is proven, courts can draw adverse inferences, adjust the settlement, and order costs.

Speak with us in confidence

If your property settlement involves business interests, trusts, or significant assets, contact us for a confidential discussion with no obligation. Call 02 9283 5599 or use the form below.

This page is general information only and is not legal advice. Property settlement outcomes depend heavily on the facts, so you should get advice from a qualified family lawyer about your circumstances.