One of the most common questions we are asked by Chinese-Australian clients is: “My spouse has property in China (or Hong Kong, or Malaysia). Does that count in Australia?” The short answer is yes. If an Australian court is dealing with your property settlement, it looks at the property of both parties wherever it is in the world. The harder questions are how that property is proved, valued and divided, and how any order is enforced.
All property, everywhere
Under the Family Law Act 1975, the court first identifies the existing legal and equitable interests of both parties in property, then decides what division is just and equitable. “Property” includes:
- real estate in any country, including PRC apartments held under land use rights;
- shares in private companies in Australia, Hong Kong, the BVI, Singapore or elsewhere;
- bank accounts, term deposits, wealth management products and investment portfolios offshore;
- interests in partnerships and family businesses;
- overseas pensions and insurance policies with a surrender value;
- cryptocurrency and digital assets; and
- in many cases, assets of trusts and companies the party controls.
Assets acquired before the relationship, by inheritance or as gifts from family are also included in the pool. Their origin is taken into account when assessing contributions, often in favour of the party who brought them in, but they are not automatically excluded.
Proving overseas property
Each party must disclose all property and financial resources, including overseas (see Overseas and hidden assets in Australian divorce). In practice, the evidence includes:
- PRC real estate certificates (不动产权证书 / 房产证) and searches of the local real estate register;
- Hong Kong Land Registry searches and company searches;
- business registration records, annual reports and audited accounts of PRC enterprises;
- overseas bank statements, usually covering at least 12 months before and since separation;
- tax returns in each country.
Documents not in English need certified translations. Where a party refuses to produce documents, the Australian court can make orders compelling production, issue subpoenas to Australian entities, draw adverse inferences, and in some cases seek evidence from overseas through international evidence procedures. These procedures can be slow; mainland China, for example, generally requires requests to go through its central authority.
Valuing property in another country
Overseas assets are valued at current market value, usually by agreement or by a single expert valuer appointed by both parties. Practical issues include:
- Currency. The exchange rate at the date of the hearing is usually used. Large currency movements during a long case can shift the outcome, which is a reason to settle sooner.
- Capital controls and restrictions. Mainland China has foreign exchange controls that limit how much money can be moved offshore. An asset worth RMB 10 million in Shanghai may not equal the same amount of cash in Melbourne. The court can take this into account when deciding who keeps which asset.
- Tax and selling costs. Selling an overseas asset may trigger tax there and in Australia. These costs can be relevant in valuing the pool.
- Private companies. Valuing a family business in China or Hong Kong usually needs a forensic accountant who understands both the local business environment and Australian family law valuation methods.
How the court divides overseas property
The Australian court rarely orders an overseas land registry to do anything. Instead it usually takes one of these approaches:
- Allocate the overseas asset to the party who owns or controls it and balance the division using Australian assets or a cash payment. This is the most common and most practical approach.
- Order a party to sell or transfer the overseas asset and pay part of the proceeds to the other party, backed by Australian assets as security.
- Order a party to sign documents needed to transfer the overseas asset, with power for a Registrar to sign on their behalf if they refuse (which works best where the overseas registry will accept an Australian court order).
Where there is a real risk that an order about overseas property will not be performed or enforced, the court can weight the division of Australian assets accordingly. This is why having assets reachable in Australia often matters more than the location of the bulk of the wealth.
Common scenarios
The family home is in Melbourne, the wealth is in China
The Melbourne home may be the only asset the Australian court can control directly. A spouse who stays in Australia may seek a larger share, or all, of the Australian assets to account for PRC assets kept by the other spouse.
Property was bought with money from parents in China
Money from parents may be a gift to the couple, a gift to one spouse, or a loan. Many families never document this. Whether there was a genuine loan that must be repaid is a frequent point of dispute; courts look closely at documents, the history of repayments and whether repayment was ever really expected.
Property is registered in a relative’s name
Property held for a spouse by a parent, sibling or friend (代持) can be treated as the spouse’s property if the evidence shows the spouse is the true owner. See our article on nominee arrangements, offshore companies and family loans.
Assets were already divided in an overseas divorce
If assets were dealt with in a PRC or Hong Kong divorce, the Australian court will take that into account. It is not a fresh division of everything, but it may deal with what was left out. See Which country should decide your divorce?
Protecting overseas assets during the case
If there is a risk that overseas assets will be sold or moved, an Australian court can grant injunctions restraining a party from dealing with property, including overseas property, and can make freezing orders. Breaching those orders has serious consequences in Australia, even if the assets are elsewhere. Where necessary, parallel protective steps can be taken in the overseas jurisdiction through local lawyers. See Overseas and hidden assets in Australian divorce.
Frequently asked questions
My spouse says the Australian court cannot touch property in China. Is that right?
No. The Australian court can include it in the pool and make orders requiring your spouse to deal with it. What may be harder is enforcing those orders in China, which is why the division of Australian assets is often adjusted instead.
Do I need to disclose my overseas property?
Yes. The duty of disclosure covers all property and financial resources everywhere. Failure to disclose can lead to adverse findings, costs orders and orders being set aside later.
What if my overseas property was bought before we married?
It is still part of the pool, but its pre-marital origin is a significant contribution in your favour. How much weight it carries depends on the length of the relationship and the other contributions made.
Which exchange rate is used?
Usually the rate at or near the date of the hearing or settlement, unless the parties agree otherwise.
How we can help
We regularly advise clients whose property is spread across Australia, mainland China, Hong Kong, Taiwan, Singapore and Malaysia. We read Chinese-language documents directly, work with forensic accountants and valuers who understand Asian markets, and coordinate with lawyers overseas so that settlements can actually be carried out in each country.
To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry.
Related reading
Justin Chua 蔡智勋, lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. The law of other countries is summarised in general terms; you should obtain advice from a lawyer qualified in that jurisdiction.
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