Asset Protection Lawyers

If you are going through separation and are concerned about a family trust, business, investment property or superannuation, our asset protection lawyers can help you to understand your options. Depending on your circumstances, there may still be steps that you can take to protect your financial position during separation. Book a free discovery call to get started.

Helping You To Protect Your Financial Future During Separation

When a relationship ends, your financial security shouldn’t be left to chance. At Eliza Legal, we help clients across Melbourne’s Bayside and Mornington Peninsula area protect their assets during separation by providing clear advice on effective legal strategies.

We can advise you on which assets will need to be dealt with in the asset pool and which structures need closer assessment, helping you to act early and preserve available options. Whether it’s your home, superannuation, family business or personal savings, we help you understand the most effective ways to move forwards to your next chapter.

Book your free 20-minute discovery call and take the first step toward safeguarding your financial position.

Why Asset Protection Matters After Separation

Your separation may involve more than dividing assets and property held in your own name. Self-managed superannuation funds, business interests and assets held through a trust can be considered when dividing assets after your relationship ends. The way an asset or structure is treated will depend on a number of factors, which is why getting early advice can help you make informed decisions about how to move forward. 

We will review relevant agreements and arrangements, ensuring you have clarity about how your assets will be considered during settlement. By understanding the legal frameworks you have in place, we can help you to plan your financial future and manage your settlement with a clear understanding of your rights, obligations and options.

At Eliza Legal, we help you identify, assess and review:

• Assets in the pool
• Assets and structures that may require thoughtful legal assessment
• Superannuation interests, including SMSF and defined benefit interests
• Minority interests, dividends and distributions
• Complex interests involving multiple parties, including trust or corporate structures 
• Offshore assets, business interests, trusts and retirement interests
• Valuation disputes and third party claims
• Share portfolios, managed funds, ETFs and bonds

By carefully reviewing your current financial position, our team will help you to manage your property settlement strategically and protect your long-term financial interests.

Our Asset Protection Lawyers Can Assist You With:

We help you deal with the complicated financial interests that don't fit neatly into a standard property settlement, including assets held through different structures or interests that may require closer investigation and careful legal advice.

• Superannuation splitting, payment splitting and flagging orders.
• Complex property settlements, including businesses and significant assets.
• Trust and company structure reviews, including ownership, distribution and control.
• Business asset protection strategies.
• Assets that have already been moved, transferred, sold or otherwise disposed of.
• Identifying, tracing and assessing assets held through companies, trusts or other structures.
• Asset valuation and risk assessment. 
• Structuring and legal agreements.
• Legally defining how assets will be divided after a relationship ends.
• Working with experts to accurately assess the value of all personal and business assets.
• Formalising complex financial settlements to ensure legal protections are in place.
• Regularly reviewing your arrangements to adapt to life changes and legal developments.

Understanding your current position and how these assets fit into your wider financial picture can help you to make better decisions about your property settlement as you move towards resolution.

How Are Assets Actually Protected After Separation? 

Separation does not automatically determine how your property and financial interests will be dealt with. Your assets may be protected during separation if you have existing legal frameworks or financial agreements in place that preserve them, allowing you to save time, stress and legal costs later on. Ensuring you are properly represented during property settlement is another important factor, as you can more clearly demonstrate how your contributions have added to the overall asset pool.

Once you have reached an agreement about how assets will be divided, there are formal ways to document this and reduce the risk of future claims. The two main options are binding financial agreements and consent orders, and the appropriate option will depend on your circumstances. We can help you to negotiate these agreements, draft and review agreements, and if necessary, represent you in court.

Binding Financial Agreements 

A binding financial agreement (BFA) can be used to record how financial matters will be dealt with after a relationship ends. Each party must receive independent legal advice, and these agreements are not assessed by the court, allowing more privacy and flexibility. They can be set aside in court in some circumstances. There are different types of BFAs that can be made under the Family Law Act 1975 (Cth) in Australia, including:

• Agreements made under section 90C which can be made at any time during a marriage, including during separation, but before a divorce occurs. 
• Agreements made under section 90D, which can be made after a divorce order is made.
• Agreements made under section 90UD, which can be made when a de facto relationship breaks down.

At Eliza Legal, we act on post-separation financial agreements only. We can advise you about whether a BFA is suitable for your situation.

Consent Orders 

Another way to formalise your property settlement is through consent orders, which are approved by the Federal Circuit and Family Court of Australia. For married couples, property orders are made in line with section 79 of the Family Law Act 1975 (Cth). For eligible de facto couples, they are made under section 90SM. These orders can deal with the alteration of property, financial and superannuation interests. Superannuation splitting orders are made under section 90XT (Part VIIIB) of the Family Law Act 1975 (Cth),as part of property orders.

Our team will ensure you are aware of the process and which method is most suitable for your matter.

How The Courts Treat Family Trusts

When a family trust is involved in property settlement during divorce or separation, one important question is whether the trust assets should be treated as property of one of the parties or whether the party's interest in the trust should instead be considered a financial resource. That distinction can affect how the trust is taken into account when the court determines the parties' financial position and property settlement.

A financial resource is broadly an interest or source of financial benefit that may provide a person with access to money or other financial support, even though they do not own the underlying asset. For example, a person may have an interest in a trust and receive distributions from it without personally owning the trust's assets.

The court looks at the particular circumstances of the trust and the parties. This can include who has the power to appoint or remove the trustee, who controls decisions and how the trust operates, and who actually receives or benefits from trust distributions. Being named as a beneficiary does not necessarily mean that a person controls the trust.

For example, if one party is the sole appointor of a trust, giving them the power to appoint or remove the trustee, that may be relevant to how the trust is considered. Similarly, being the sole director of a company that acts as trustee may be relevant to the question of control. There is no fixed formula for determining the outcome, which is why it’s important to get legal advice early on that is specific to your circumstances. 

The court also has specific powers under section 85A of the Family Law Act 1975 (Cth) in relation to property dealt with by an ante-nuptial or post-nuptial settlement made in relation to a marriage. Separately, Part VIIIAA gives the court power in appropriate circumstances to make orders affecting third parties, including trustees, in connection with a property settlement. For example, section 90AE allows certain orders under section 79 to be directed to or affect the rights, liabilities or property interests of a third party. 

Where a family business operates through a trust, understanding the trust deed, ownership, control and distribution arrangements are an important part of assessing your overall financial position.

What If Assets Are Already Being Moved?

If you are concerned that assets are being transferred, sold or otherwise dealt with during or after separation, it is important to get legal advice early. The law provides mechanisms that can help preserve the position while your property matters are being resolved.

Under section 106B of the Family Law Act 1975 (Cth), the court can set aside or restrain an instrument or disposition that has been made or is proposed to be made to defeat an existing or anticipated order. The provision can also apply where, regardless of the person's intention, the dealing is likely to defeat such an order.

If money or other property has already been spent or lost, that does not mean the issue cannot be considered. For married couples, the court can take into account any intentional or reckless material wastage of property or financial resources as part of its assessment of the parties' current and future circumstances under section 79(5)(d). The corresponding provision for de facto couples is section 90SM(5)(d). This factor was introduced as part of the property law changes that commenced on 10 June 2025. You can read the Federal Circuit and Family Court of Australia's summary of the property law changes from 10 June 2025. 

The court also has powers to grant injunctions, which can be made on an urgent basis. Section 114 provides for injunctions in family law proceedings, while section 90SS provides the corresponding powers for de facto financial matters. These powers can be used in appropriate circumstances to help preserve the position while the matter is being resolved.

If you are concerned about assets being moved, transferred or disposed of, getting advice early and keeping clear records can help. Avoid responding by moving or disposing of assets yourself, as this can complicate your financial position and the eventual settlement.

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