When a family’s wealth sits in more than one country, separation is not one legal problem but several. An apartment in Melbourne, a factory in Guangdong, a company in Hong Kong, a family trust in Australia, bank accounts in Singapore and a plantation share in Malaysia may each be governed by different laws, different courts and different tax systems. Decisions made in the first few weeks, often before anyone has filed anything, can decide which of those systems ends up controlling the outcome.
This guide is written for business-owning and wealthy Chinese families, including families from mainland China, Hong Kong, Taiwan, Singapore, Malaysia and Indonesia, where at least one spouse or partner has a connection to Australia. It explains how Australian family law approaches international wealth, the issues that arise most often, and the practical first steps.
1. Australian courts can deal with property anywhere in the world
If the Federal Circuit and Family Court of Australia has jurisdiction (for example, because either party is an Australian citizen, is ordinarily resident in Australia, or is present in Australia when proceedings start), it can make orders about the parties’ property wherever that property is located. A house in Shanghai, shares in a BVI company and a Hong Kong bank account all form part of the property pool in the same way as a house in Toorak.
The court does not usually make orders directly transferring land in another country. Instead it makes orders in personam, directing a party to sign documents, sell, transfer or pay. If that party does not comply, the court can adjust the division of Australian assets, appoint a Registrar to sign documents, or punish non-compliance. This is why where the assets sit matters less than where the people and their reachable assets sit.
Read more: How overseas property is valued and divided in an Australian divorce
2. Which country decides? The race to file
Many international families could start proceedings in two or three countries. The legal systems are very different:
| Jurisdiction | General approach to dividing property |
|---|
| Australia | Broad discretion: what is “just and equitable”, looking at all property (including pre-marriage, inherited and overseas assets), contributions and each party’s future needs. Applies to de facto couples as well as married couples. |
| Mainland China | Under the PRC Civil Code, property acquired during the marriage is generally joint property, while pre-marital and certain personal property generally stays separate. Courts often divide joint property equally, subject to adjustments. |
| Hong Kong | Court discretion with a “sharing principle” that often starts from equal division of matrimonial assets, with departures for good reason (for example, inherited or pre-marital assets). |
| Singapore / Malaysia | Division of “matrimonial assets” based on direct and indirect contributions. Singapore courts commonly use a structured contributions approach; Malaysia’s civil law applies to non-Muslim marriages. |
Depending on where the wealth is, how it was acquired and who earned it, the same family can face very different outcomes in different countries. A spouse whose wealth is mostly pre-marital or inherited may be better protected in a jurisdiction that excludes those assets; a financially weaker spouse may be better off in Australia, where future needs and the whole asset pool are considered.
When proceedings are started in two countries, the Australian court will generally only stay its own case if Australia is a “clearly inappropriate forum” (the test from Voth v Manildra Flour Mills and Henry v Henry). Filing first is not decisive, but it often matters a great deal. Read more: Which country should decide your divorce?
3. Trusts, companies and nominee arrangements
Wealthy families rarely hold everything personally. Australian family trusts, Hong Kong and BVI holding companies, PRC enterprises and informal nominee (代持) arrangements are common. Australian courts look at control and substance, not just legal title. Since the High Court’s decision in Kennon v Spry, assets in a discretionary trust controlled by a spouse can be treated as property of the relationship, and courts can also treat assets of a controlled company, or held by a relative “on behalf of” a spouse, as part of the pool or as a financial resource.
Equally, assets that genuinely belong to parents, siblings or the wider family business should not be swept into a couple’s property pool simply because a spouse works in the business. Separating the couple’s property from the wider family’s property is often the central battle in these cases. Read more: Family trust divorce in Australia: Kennon v Spry and Nominee (代持) arrangements, offshore companies and family loans.
4. Disclosure: the obligation that drives everything
Each party must give full and frank disclosure of all property, income and financial resources, in Australia and overseas. Since June 2025 this duty is set out in the Family Law Act itself (section 71B). It continues throughout the case and covers interests held through trusts, companies and other people.
In cross-border cases, disclosure is where most disputes arise: overseas accounts, related-party loans, company records in Chinese, and assets moved shortly before or after separation. The court can draw adverse inferences against a party who does not disclose, add back money that has been dissipated, set aside transactions designed to defeat a claim, and grant urgent injunctions to stop assets being moved. Read more: Overseas and hidden assets in Australian divorce.
5. Getting an Australian order recognised overseas
An order is only as useful as its enforcement. Before deciding where to litigate and what orders to seek, it is important to think about where the assets are and whether the courts there will recognise an Australian order. Recognition of Australian family law orders in mainland China, for example, is not automatic, and property orders can be harder to enforce than a divorce itself. Sometimes the better strategy is to structure orders so they are performed in Australia (for example, by adjusting Australian property or requiring payment from Australian assets), or to reach a negotiated agreement that each party carries out in each country. For country-specific guidance, see Divorced in mainland China, property in Australia, Hong Kong divorce and Australian property and Divorce and separation between Australia and Malaysia.
6. Family businesses and the next generation
When the family business is part of the pool, the questions go beyond who gets what. Who will run the business? Will the children inherit it? Can the business survive a large payout to one spouse? How do you value a private company with operations in China? Separation can be an opportunity to put proper succession and governance arrangements in place rather than damaging the business. Read more: Family business owners going through separation.
7. Privacy and reputation
For prominent families, confidentiality matters. Australian family law proceedings are subject to strict publication restrictions (Part XIVB of the Family Law Act, which replaced the former section 121), and it is an offence to publish material identifying the parties. Even so, court hearings, affidavits and disputes in other countries can expose private information. Private mediation and family law arbitration allow sensitive financial matters to be resolved confidentially, in Mandarin or Cantonese where helpful, and on a timetable the parties control.
8. Tax, stamp duty, foreign investment and immigration
Property orders can trigger tax in several countries at once. Australian capital gains tax roll-over relief may be available for transfers under family law orders or binding financial agreements, and Victorian stamp duty exemptions often apply to such transfers, but these Australian concessions do nothing about tax or duty that may be payable in the other country. Foreign persons transferring Australian property may need to consider foreign investment (FIRB) rules, foreign purchaser additional duty and absentee owner land tax surcharges. Where a party’s visa depends on the relationship, immigration consequences also need early advice. These issues should be modelled before agreeing on a division, not after.
9. Strict time limits
Married couples must generally start property proceedings in Australia within 12 months of a divorce becoming final; de facto couples within 2 years of separation. Missing the deadline means you need the court’s permission, which is not guaranteed. If you were divorced overseas (for example, in mainland China), the 12-month limit for Australian divorces does not strictly apply, but delay still carries real risk: assets can be moved and evidence becomes harder to obtain.
First steps if you are separating
- Get advice before you act. Do not move assets, restructure companies or start proceedings overseas without understanding the Australian consequences.
- Map the assets. List property, companies, trusts, accounts and liabilities in each country, who holds them and who controls them.
- Keep documents. Copies of bank statements, company records, trust deeds, property certificates (房产证) and tax returns, in any language.
- Consider the forum early. Where should this be decided, and where will the orders need to be enforced?
- Consider private resolution. Negotiation, mediation or arbitration can save years and protect privacy and the family business.
Frequently asked questions
Does an Australian court have power over my property in China or Hong Kong?
Yes. If the Australian court has jurisdiction over the parties, it can include overseas property in the pool and make orders requiring a party to deal with it. Enforcement overseas is a separate question.
We were married in China. Can we still divide property in Australia?
Yes. Where you married does not determine whether Australian family law applies. What matters is each party’s connection to Australia, such as citizenship, residence or presence, when proceedings start.
Is inherited or pre-marriage wealth protected in Australia?
Not automatically. Australian courts look at all property held at the time of the hearing. Inherited and pre-relationship assets are usually treated as a significant contribution by the party who brought them in, which can protect much of their value, but they are not excluded from the pool.
Can we keep our separation confidential?
Australian law restricts publication of family law proceedings, and resolving matters through private negotiation, mediation or arbitration keeps the details out of open court.
How we can help
Chua Tan Associates has advised Chinese-Australian and overseas Chinese families in Melbourne since 1990, in English, Mandarin and Cantonese. We work on separations involving property, businesses and trusts in Australia and across Greater China and Southeast Asia, and coordinate with lawyers, accountants and valuers in other jurisdictions. Our principal Justin Chua is a Nationally Accredited Mediator, Family Dispute Resolution Practitioner and Family Law Arbitrator, so we can also help families resolve matters privately.
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 for comparison; you should obtain advice from a lawyer qualified in that jurisdiction.
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