Separation and Property Settlement for Business Owners
Clear advice on what separation means for your business, family trust and super. Based in Ascot Vale, acting for clients across Melbourne.
When a business is part of the separation
Separating is hard enough. When there is a company, a family trust or a self-managed super fund involved, it also raises questions most people have never had to think about.
What is the business worth? Does it have to be sold? Does the trust count? What happens to the staff, the premises and the income everyone relies on?
We act for business owners and for their spouses, including in matters with asset pools in the tens of millions. Either way, the aim is the same: a fair property settlement that you understand, reached with as little damage to the business and the family as possible.
Will I have to sell the business?
Usually not. A business is treated as property, so its value is counted, but a sale is only one possible outcome.
Often one person keeps the business and the other receives other assets, a larger share of the home or super, or a payment over time. We look at what the business can afford, so the settlement does not cripple the thing that produces the income.
The value is normally set by an independent valuer. We work with them and with your accountant, and we explain the figure in plain terms so you can test it.
Family trusts and company structures
Putting assets in a trust or company does not put them outside a settlement. Whether they are counted depends on who really controls the structure and who has benefited from it.
We review the trust deed, the company records and the history of distributions, then tell you where you stand before you negotiate.
Transfers between spouses can also have tax and stamp duty consequences. We work with your accountant so those are known before you agree to anything.
Self-managed super and business premises
Super is treated as property and can be split. That is harder when a self-managed fund owns the building the business trades from. We work out the options with your fund's accountant so the business is not left without its premises.
Overseas assets and executive pay
Property held overseas is not outside an Australian settlement. Foreign real estate, offshore accounts and overseas companies or trusts all need to be identified and valued, often with advisers in other countries.
The same applies to income tied up in your career: share options, performance rights and deferred bonuses. We work out what they are worth and how they should be treated.
If your spouse runs the finances
You may not know what the business earns, what the trust owns or where the money goes. You are entitled to find out.
Both of you have a legal duty to give full and frank financial disclosure. We know what documents to ask for, and what to do when the answers do not add up. You do not have to accept a business valuation you cannot check.
If assets are being sold or moved, the court can make urgent orders to stop it. Speak to us early if you are worried.
Protecting a business before or during a relationship
A financial agreement, often called a prenup, sets out how assets will be divided if a marriage or de facto relationship ends. It can be made before, during or after the relationship.
These agreements are often used to protect a family business, an inheritance or a farm. Each of you must get independent legal advice for the agreement to be binding.
A family firm, with our names on the door
Conlan Cummings is a family-owned practice. Gerard Conlan, who has practised law since 1971, founded the firm and remains with it as a consultant. His daughter, Elizabeth Cummings, is now the Principal. Their names are on the door, and that is why we take every matter personally.
When your separation involves a business, a trust and your family's future, you need one experienced lawyer who knows your matter inside out. You work with the same lawyer from the first conversation to the final orders, and they are easy to reach when you need them.
We are a close-knit practice. You can expect warmth, calm direction and honest advice about where you stand, including when the news is not what you hoped.
Who you will work with
Raffaella Cossalter is a Senior Associate in our family law team. She qualified as a solicitor in South Africa, moved to Australia in 2006 and joined Conlan Cummings in 2020. [Two sentences on the business and property matters she has run, in her own words, including the size of the asset pools she has handled.]
You deal with Raffaella directly, from the first conversation to the final orders.
How it works
- Free initial chat.
Call or send an enquiry, and you will speak with one of our lawyers at no cost and with no obligation. If you would like detailed advice after that, we tell you the cost before you book a consultation, in person or by video.
- A clear picture.
Before your consultation, we send a short questionnaire so your time with the lawyer is spent on your matter, not paperwork. We then gather the financial information and work out what is in the asset pool and what it is worth.
- Negotiation.
Most property matters are settled by agreement. We negotiate directly or through mediation.
- Making it binding.
The agreement is formalised so it is final and enforceable.
- Court, if needed.
If agreement is not possible, we represent you in the Federal Circuit and Family Court of Australia.
- After settlement.
Our wills and estates team, Elizabeth Cummings, Simon Curry and Imogen Power, can update your will, trust deeds and super nominations to match the new arrangements.
Common questions
Do I need to be divorced before we divide property?
No. You can reach a property settlement at any time after you separate.
How long do I have?
If you were married, you have 12 months from the date your divorce becomes final. If you were in a de facto relationship, you have two years from the date it ended. After that you need the court's permission.
Can my partner claim assets I owned before the relationship, or an inheritance?
They are not automatically excluded. What you brought in, or inherited, counts as your contribution. How much weight it carries depends on the length of the relationship and how the assets were used during it. Good records of where the money came from help.
Do we have to go to court?
Most people do not. An agreement can be made binding without a hearing. Court is for when agreement is not possible or something urgent needs protecting.
Can a financial agreement fully protect my business or inheritance?
It gives strong protection, but not an absolute guarantee. Strict legal requirements apply, and a court can set an agreement aside in some circumstances. A carefully drafted agreement, made early, is much harder to challenge.
How do we avoid an unexpected tax bill when dividing assets?
By looking at tax before you agree, not after. Capital gains tax on transfers between separating spouses can often be deferred, but it is not wiped out. Where a company is involved, moving money or assets out of it can create its own tax problems. We work through this with your accountant.
What will it cost?
Your first chat with one of our lawyers is free, with no obligation. If you then want detailed advice, we tell you the cost of a first consultation before you book it. Before any further work starts, you receive a written estimate of costs.
Talk to us in confidence
If you are separating, or think you might be, an early conversation helps you understand where you stand. Call 03 9375 2616 or send an enquiry, and our reception team will arrange a free initial chat with one of our lawyers. Everything you tell us is confidential. Our office is at 554 Mount Alexander Road, Ascot Vale, and we act for clients across Melbourne.
This page is general information, not legal advice.
Send an enquiry
Our reception team will arrange a free initial chat with one of our lawyers. Everything you tell us is confidential.
Prefer to talk now? Call 03 9375 2616.