Complex property settlements for families with overseas assets, trusts and parental money
Reviewed by Justin Chua, principal, Chua Tan Associates · Updated 18 October 2026
In an Australian property settlement the court looks at everything both parties own or control, wherever it is, including property in China, Hong Kong, Singapore or Malaysia, family trusts and companies. Money from parents may be treated as a loan or a gift depending on the evidence, and each party must make full and frank disclosure. Strict time limits apply, and urgent orders can be sought if assets are being moved.
The legal framework after 10 June 2025
Property settlements for married couples, and for de facto couples everywhere except Western Australia, are governed by the Family Law Act 1975 (Cth). The Family Law Amendment Act 2024 changed the property provisions from 10 June 2025, including for existing cases where the final hearing had not started.
The Act now sets out the steps the court follows in s 79:
- identify the existing legal and equitable rights and liabilities of the parties (the property pool);
- assess each party’s financial and non-financial contributions, including as homemaker and parent;
- assess current and future circumstances, such as age, health, earning capacity, care of children and housing needs;
- make only an order that is just and equitable.
The court must also consider the economic effects of family violence, including financial abuse, on contributions and future circumstances. New express factors include wastage of property, and companion animals (family pets) are dealt with separately. The duty of full and frank financial disclosure, which used to sit in the court rules, is now in the Act itself (s 71B for married couples and s 90RI for de facto couples).
Overseas assets in China, Hong Kong, Singapore and Malaysia
An apartment in Shanghai, a flat in Hong Kong, a condominium in Singapore or shares in a Malaysian family company all form part of the pool if a party has an interest in them. The Australian court can make orders operating on the parties personally, such as to sell or transfer an overseas interest, or can give the other party more of the Australian assets to balance it out.
Practical problems we see:
- valuing overseas property without the other party’s cooperation;
- documents that need certified translation;
- currency controls and tax when money comes out of China;
- parallel proceedings in Australia and in China or Hong Kong.
In [Beng & Kwok [2022] FedCFamC1A 117](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2022/117.html), the couple had married in China and separated in Australia. The husband started property proceedings here and the wife later started divorce and property proceedings in China. The trial judge refused to stay the Australian case and restrained the wife from pursuing the Chinese proceedings; the Full Court refused her leave to appeal. Where two countries are connected, which court proceeds can matter a great deal.
Family trusts and companies
Trust assets are not automatically “property” of a party, but the court looks at who really controls the trust and how it has been used. Where one spouse effectively controls a trust, its assets may be treated as property or as a financial resource.
In [Kennon v Spry [2008] HCA 56](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2008/56.html), the husband was trustee of a family trust. As the marriage broke down he excluded himself and his wife as beneficiaries and then distributed the trust assets to trusts for their daughters. The High Court upheld orders treating the trust assets as part of the pool and setting aside the dispositions. Restructuring a trust after problems start rarely achieves what was intended.
Money from parents: loan or gift?
Parents in China or elsewhere often send large sums to help buy a home, frequently without a written agreement. On separation, one side says it was a loan; the other says it was a gift.
The court looks at evidence from the time of payment: loan agreements, transfer notes, WeChat messages, whether interest was paid or repayment requested, and whether the money went to one spouse or both. An undocumented, never-enforced “loan” is often treated as a gift, or given little weight.
Parents can be joined as parties to the family law case so their claim is decided at the same time. In [Zhuo & Ji (No 4) [2025] FedCFamC1F 22](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2025/22.html), the husband’s parents were joined and claimed they had lent him several million dollars. The court was not satisfied of the amounts or that the payments were loans rather than gifts, and excluded them from the balance sheet. The husband had also failed to make disclosure and breached injunctions; the wife received all known assets plus a further cash payment.
Assets held by relatives
Property registered in a relative’s name but paid for by a spouse may be found to be held on trust, and the relative can be joined as a party. Who paid the deposit and mortgage, and who receives the rent, is usually decisive.
Non-disclosure, wastage and add-backs
Each party must disclose all property, income, financial resources and relevant transactions, including overseas accounts and interests held through others, until the case ends. If a party hides assets, the court can draw inferences against them, adjust in the other party’s favour, order costs and, in serious cases, punish contempt.
Before the amendments, money a party had spent or given away could be “added back” to the pool as notional property. In [Shinohara & Shinohara [2025] FedCFamC1A 126](https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1A/2025/126.html), the Full Court held that under the amended s 79 only existing property goes on the balance sheet. Money wasted or spent on legal fees is instead considered under current and future circumstances. The conduct still counts, but is argued differently.
Urgent orders to stop assets being moved
If there is a real risk that assets will be sold, mortgaged or sent overseas, the court can grant an injunction, sometimes urgently and without notice. For married couples the power is in s 114, and for de facto couples s 90SS. Under s 90AF an injunction can, in some circumstances, bind a third party. Transactions made to defeat a claim, including transfers to relatives, can be set aside under s 106B. Act as soon as you see warning signs.
Spousal maintenance
A party who cannot adequately support themselves may seek maintenance from a former partner who is reasonably able to pay. Interim maintenance can be sought early in the case.
Time limits and costs
For married couples, property and maintenance applications must be filed within 12 months after a divorce order takes effect. For de facto couples, the limit is two years after the relationship ends. Filing later requires the court’s permission, which is not guaranteed.
The general rule under s 117 is that each party pays their own legal costs. The court can order otherwise, for example where a party failed to disclose, breached orders or ran the case unreasonably.
How we help
Chua Tan Associates acts in these matters in English, Mandarin and Cantonese. Where both sides are willing, a private resolution can be arranged through the Chinese Australian Dispute Resolution Centre (CADRC). Contact us on +61 3 9602 3988.
FAQs
Can an Australian court divide property I own in China?
Yes, it can take overseas property into account and make orders against the parties personally, such as orders to sell, transfer or pay. Enforcing those orders directly in another country depends on that country’s law.
My parents paid for our house deposit. Will my spouse get half?
Not necessarily. If there is good evidence it was a genuine loan, it may be treated as a debt; if it was a gift, it is usually treated as a contribution on behalf of the party whose parents made it, depending on who the gift was intended for.
Can my parents-in-law be joined to the case?
Yes. Parents or relatives who claim money or hold property in dispute can be joined so the court can decide their claims at the same time.
What if my spouse is hiding assets overseas?
Raise it early. The court can order disclosure, issue subpoenas, draw adverse inferences and make costs orders against a party who does not disclose.
How long do I have to apply?
Twelve months after the divorce order takes effect for married couples, and two years after separation for de facto couples. Late applications need the court’s permission.
Talk to us about your matter
Book a confidential consultation in English, Mandarin or Cantonese, or call +61 3 9602 3988.
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General information only, not legal advice. Every matter turns on its own facts. Reviewed by Justin Chua, principal, Chua Tan Associates.
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