Assets in mainland China, Taiwan or Hong Kong SAR are not outside an Australian property settlement or estate dispute simply because they are offshore. In family law, each party must disclose all of their property and financial resources wherever they are, and the court can make orders that bind the party personally even where the asset itself sits in another country. In estate disputes, the position is more nuanced, because which assets an Australian court can deal with depends on the type of asset and where it is. The practical difficulty is rarely the law; it is proving what exists and turning an Australian order into something that works abroad.
The duty of full and frank disclosure
Since 10 June 2025 the duty of disclosure in financial and property proceedings has been set out in the Family Law Act 1975 itself: section 71B for married couples and section 90RI for de facto couples, inserted by the Family Law Amendment Act 2024. Each party must give full and frank disclosure, in a timely manner, of all information and documents relevant to the issues. The duty applies from the start of the proceeding until it is finalised. Before that change the same duty existed under the court rules, and it still does: Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (rule 6.01 and Parts 6.1 to 6.3) now cross-refers to sections 71B and 90RI.
In practice, the duty covers a party’s total direct and indirect financial circumstances, including property and income held through companies, trusts or other structures, and any sale, transfer or gift of property in the 12 months before separation or since separation. Nothing in the duty is limited to Australia. A shareholding in a Shenzhen company, an apartment in Taipei, a Hong Kong brokerage account or an interest in a family holding company in the British Virgin Islands must all be disclosed.
Each party must file a Financial Statement and, before the first court date, an undertaking that they have read section 71B or 90RI and the disclosure rules and have complied with the duty. Rule 6.06 also requires the exchange of key financial documents (such as tax returns, financial statements of companies and trusts, and superannuation information) early in the case. A false undertaking can be contempt of court.
What else changed on 10 June 2025
- A structured property framework. Section 79 now sets out the steps the court takes: identifying the parties’ existing legal and equitable interests and liabilities, considering contributions, considering current and future circumstances, and ensuring the result is just and equitable.
- Family violence. The court must consider the effect of family violence on a party’s ability to make contributions and on their current and future circumstances. The definition of family violence now gives examples of economic or financial abuse.
- Wastage. The court must consider material wastage of property or financial resources caused intentionally or recklessly by a party.
- Liabilities. The court considers the nature of liabilities and the circumstances in which they were incurred, which is relevant where debts appear suddenly, for example a “loan” from a relative overseas.
The codified duty applies to proceedings commenced on or after 10 June 2025; for earlier proceedings the rules-based duty, which is materially the same, continues to apply.
How overseas assets are brought into the property pool
An Australian court exercising property jurisdiction acts in personam: its orders are directed at the parties, not at the land registry in Beijing or the bank in Hong Kong. The court can include overseas property in the pool, value it, and then make orders that require a party to sell it, transfer it, or pay a sum of money that reflects its value. Where the other party’s Australian assets are sufficient, the simplest structure is often a compensating adjustment: the party who keeps the overseas asset receives a smaller share of the Australian assets.
Enforcement abroad is a separate question. Recognition of an Australian property order in mainland China or Taiwan depends on the local rules on recognition of foreign judgments, which commonly turn on matters such as reciprocity and public policy, and the outcome is uncertain. Hong Kong SAR has its own regime. We work alongside lawyers in those places when an order needs to operate there, but the planning starts in Australia: orders should be drafted so that, as far as possible, they can be carried out using Australian assets or by a party’s own acts, backed by the court’s powers if the party does not comply.
Tools for finding and proving hidden assets
| Tool | What it does | Cross-border reality |
|---|
| Disclosure and requests for documents | Specific written requests to the other party for bank statements, company records, tax filings and transaction explanations | The most effective tool, because it is directed at the party, who has access to their own overseas records |
| Notices to produce and court orders for disclosure | Orders requiring a party to produce identified documents or answer questions | Non-compliance can lead to adverse findings, costs and contempt |
| Subpoenas | Compel third parties to produce documents | Effective against Australian banks, accountants and Australian branches; generally ineffective against institutions in mainland China or Taiwan |
| Single expert valuer or forensic accountant | Values a business, traces funds, analyses company and trust accounts | Valuing a PRC company needs an expert who can read Chinese financial statements and understand local accounting and registration records |
| Public registers | Company, land and court records | Some company registration information in mainland China and Taiwan is publicly searchable and can identify shareholdings and directorships |
Obtaining evidence directly from a bank or registry in mainland China is slow, and PRC law restricts collecting evidence there for foreign proceedings outside official channels. For that reason, the focus in most cases is on orders against the party who controls the asset, rather than on chasing third parties abroad.
Adverse inferences and add-backs
Where a party fails to make proper disclosure, the court is not required to accept their account of their finances. The Full Court of the Family Court in Weir and Weir (1992) held that where non-disclosure is established, the court should not be unduly cautious about making findings in favour of the other party. In practice this can mean the court finds that undisclosed assets exist and adjusts the division in the other party’s favour, even without a precise figure.
Separately, where money has been spent or moved before trial (for example, legal fees paid from joint funds, or a large transfer to a relative), the court may in limited circumstances “add back” the amount to the pool notionally, or deal with it as a factor under the new wastage and liabilities provisions. Section 106B also allows the court to set aside or restrain transactions made to defeat a claim, including transfers to third parties. If concealment is discovered after final orders, section 79A permits property orders to be set aside where there has been a miscarriage of justice, including by suppression of evidence.
Freezing assets before they move
Where there is a real risk that assets will be moved or dissipated, a party can apply for an injunction under section 114 of the Family Law Act (section 90SS for de facto couples), including an order restraining dealings with property or requiring a party not to remove funds from Australia. Freezing orders can extend to assets held overseas, and are made against the party personally, so a breach is a breach of the Australian order regardless of where the asset is. Applications are often made urgently and, in appropriate cases, without prior notice to the other side. The applicant must show a proper basis for the concern; a general suspicion is not enough.
Parallel proceedings: a divorce in China or Taiwan
Where one spouse starts divorce or property proceedings in mainland China or Taiwan and the other in Australia, the Australian court will generally ask whether Australia is a clearly inappropriate forum, the test applied by the High Court in Henry v Henry (1996). The court may stay its own proceedings, or in rarer cases restrain a party from pursuing foreign proceedings. A divorce obtained overseas is usually recognised in Australia, and a recognised foreign divorce may start the 12-month time limit for property proceedings here, so a spouse who learns of a foreign divorce should take advice promptly.
Local law also addresses concealment. In general terms, mainland China’s Civil Code allows a court to give less, or nothing, of the joint property to a spouse who conceals, transfers or destroys it or fabricates debts, and allows a later claim for redivision if concealment is discovered after divorce. Taiwan’s Civil Code allows certain property disposed of in the five years before the end of the marital property regime, with intent to reduce the other spouse’s claim, to be added back when calculating the residual property claim. Advice on those rules should come from lawyers in those places, and we coordinate with them where proceedings run in two countries.
Estate disputes: assets offshore or in other people’s names
When someone dies with assets in Australia and overseas, an Australian grant of probate or letters of administration gives the executor authority over assets in that state. Assets in mainland China, Taiwan or Hong Kong SAR must be collected through the processes there. The executor nonetheless has a duty to identify, collect and account for the estate, and beneficiaries can ask the court to require an executor to file an inventory and accounts. In contested proceedings in the Supreme Court, discovery is available, and in Victoria the Civil Procedure Act 2010 imposes an overarching obligation to disclose documents critical to the issues.
Family provision claims and offshore property
Family provision claims (applications by eligible persons for further provision from an estate) are where overseas assets most often matter. Under the choice-of-law rules generally applied, an Australian court deals with movable property (such as bank accounts and shares) if the deceased was domiciled in that state, and with land located in that state. Land in mainland China or Taiwan is generally outside an Australian family provision order, but its existence and value are still relevant to what the claimant should receive from the Australian estate, and to the claimant’s own financial position. Time limits are short: in Victoria a claim must generally be made within six months after the grant; in New South Wales, within 12 months after the date of death. See who can challenge a Will in Victoria, and when.
New South Wales also allows the court to designate property outside the estate as “notional estate”, including property disposed of in certain transactions before death, so that it can be used to satisfy a family provision order. Victoria has no equivalent notional estate regime, which makes the question of who owns an asset at death more important.
Assets held in other people’s names
In Chinese families, property is often held in a child’s or relative’s name, or funded through informal transfers. Whether that property belongs to the registered owner, is held on a resulting trust, or reflects a loan that must be repaid is a recurring issue in both estates and separations. See property in a child’s name and family advances: loan or gift?
CRS and the exchange of information
Under the Common Reporting Standard, financial institutions in Australia, mainland China and Hong Kong SAR report accounts held by tax residents of the other jurisdictions to their tax authorities, which exchange the data each year. That information is exchanged for tax purposes; a spouse or beneficiary cannot obtain it on request. Its practical significance is different: offshore accounts are increasingly visible to tax authorities, so a party who omits them from a family law disclosure, while declaring them elsewhere, takes a real risk. See CRS and mainland China’s overseas income checks.
Practical points
If you suspect concealment
- Gather what you already have lawfully: copies of documents seen during the relationship, company names, addresses of properties, WeChat or email references to investments, and records of large transfers. Do not access the other person’s accounts or devices without authority.
- Write down a timeline of acquisitions, transfers and business events, including dates and approximate values.
- Act quickly if assets may be moved; an injunction application depends on evidence of risk.
- Make targeted disclosure requests rather than general ones, and keep a record of every refusal or evasive answer, which supports later adverse findings.
- Consider early whether a forensic accountant with Chinese-language capability is needed, and whether proceedings may also be needed abroad.
If you hold significant overseas assets
- Disclose fully and early. Partial disclosure tends to cost more, in credibility and in outcome, than the asset itself.
- Prepare a clear schedule of overseas interests, with ownership structure, translated supporting documents and an explanation of any family or third-party interests.
- Explain family arrangements (for example, property held for parents or funded by them) with evidence, rather than by assertion.
- Privacy can be protected by proper means: Part XIVB of the Family Law Act restricts publication of identifying information about family law proceedings, and confidential processes such as private mediation and negotiated consent orders keep most of the detail out of open court. See cross-border and Chinese-language mediation.
Common mistakes
- Assuming that because an asset is in mainland China or Taiwan, an Australian court “cannot touch it”.
- Transferring property to relatives after separation or before death, which can be set aside, added back or treated as notional estate.
- Waiting for a foreign divorce or estate process to finish, and missing Australian time limits.
- Relying on unverified translations or informal valuations of overseas businesses.
- Treating a family dispute as purely legal: in many Chinese families, a confidential negotiated outcome protects relationships and reputation far better than a contested hearing.
How we can assist
We act in property settlements and estate disputes where assets are in mainland China, Taiwan and Hong Kong SAR: framing disclosure requests, working with forensic accountants and valuers, seeking urgent injunctions, structuring orders that can be carried out, and coordinating with lawyers abroad where parallel proceedings or enforcement are involved. We also assist parties with significant overseas wealth to disclose properly while keeping the process as private as the law allows, including through mediation.
Related reading
Chua Tan Associates acts for families and their professional advisers on Australian legal matters with a cross-border dimension, working alongside lawyers and tax advisers in mainland China, Taiwan and Hong Kong. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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