When someone sits down with us after going through a separation, the list of assets they bring usually covers the house, the cars and the bank accounts.
However, the property pool Courts work with is actually wider than that, and can include assets held in only one person’s name, assets people have forgotten they own, and every debt either of you owes.
This article is a deep dive into the things we most often have to chase up, as well as what you’ll need to gather before your first appointment.
What counts as property in family law
A lot more than most people expect.
The Family Law Act 1975 (Cth) doesn’t have a list of assets; it treats anything either of you are entitled to, including an interest you hold now even if you won’t get the benefit of it until later, as property. This is the reason the pool is so wide-reaching.
The first thing the Court does is identify what each of you owns and what each of you owes, which means debt counts from the beginning.
The Family Law Act also separates property from other financial resources, so something can be taken into account without being an asset that is divided.
The same approach applies to de facto couples (apart from in Western Australia, where de facto couples generally fall outside these federal rules).
What people most often forget to include
Three things come up over and over again.
- Investments like cryptocurrency. The asset we have to follow up on most often is an investment portfolio with things like cryptocurrency.
- Credit in online betting accounts. Certain betting accounts let you keep a credit balance, and that credit is considered an asset. People forget about it, sometimes “conveniently.”
- Old super funds. Most people only think about the fund their current employer is paying into, but anyone who has been working for a while is likely to have one or more older funds they’ve lost track of. It’s usually an honest mistake, but not always.
Key tip: once property proceedings are under way, you can ask the Court, via the Commonwealth Courts Portal, to request the other party’s superannuation information from the ATO. In practice, this is just a tick-box, and the figure that comes back is the balance last reported to the ATO, so it may not be current.
Are debts included in a property settlement?
Yes. In family law they’re known as liabilities, and they shape the asset pool itself.
Working out the asset pool is the first step in the four-step process for dividing property after separation. The pool is:
Gross assets, minus liabilities, plus superannuation.
This makes liabilities a key aspect of settling property. If you get the debts wrong, every step thereafter is working from the wrong number.
Since June 2025, the Family Law Act has set out the same stages itself, where the Court:
- Identifies what each person owns and owes
- Considers each person’s contributions and future circumstances
- Makes an order only if it is just and equitable
How a debt arose can also be taken into account.
What if an asset is only in my ex’s name?
It can still be in the pool. The name on a title doesn’t decide this; what matters is whether either of you is entitled to it.
Does a family trust or company interest count?
This question answers itself. If you have an interest in a family trust or a corporate entity, that interest is in the pool by default.
However, being considered isn’t the same as being divided. Depending on the way the trust or company is set up and run, an interest may be treated either as property to be divided or as a financial resource the Court considers in other ways.
This is decided on a case by case basis.
Moved assets: if any assets have been moved into a trust, company or someone else’s name in a way that is likely to defeat an existing or expected Court order, the Court can set that transaction aside or stop one that has only been proposed.
Is cryptocurrency part of the property pool?
Yes, if either of you is entitled to it. There is no special rule for digital assets; they are considered to be property like anything else. The hard part is usually finding them and working out their value.
We see a lot of cryptocurrency in these situations, as well as items described as sporting or cultural memorabilia which turns out to be an NFT (Non-Fungible Token) on closer inspection. NFTs are a digital asset that can carry real value.
Example: imagine you remember your former partner buying something for themselves around Christmas a few years ago. We’d ask for disclosure of their bank statements for the period around that Christmas, and a transaction, or a group of transactions, would usually show whether they’re likely to have that asset. If the records support it, they can be put on notice.
Each party has a duty to give full and frank disclosure of their financial circumstances. This applies while preparing for proceedings, and continues once proceedings begin.
What about things bought after separating?
They can be considered part of it. Separation doesn’t freeze the pool; the Court looks at the property and debts that exist when it deals with the matter, which means something that was bought after separation can still be included. Contributions made after separation can also be counted.
What happens to the family pet?
A pet is considered property, but with special rules. Pets have always been a sore point in separations, and special rules came into effect for companion animals on 10 June 2025.
The Court can only order that:
- One person keeps the animal
- It goes to someone else who has agreed to take it
- It is sold
The Court cannot make any other kind of order about who owns the animal, such as shared ownership, even if both parties agree to it. It’s common for couples going through a separation to make their own informal arrangement instead.
When making a decision about a family pet, the Court considers things like:
- How the animal was acquired
- Who owns or has it now
- Who has cared for it and paid for its upkeep
- Any history of family violence between the two of you
- Any cruelty or abuse towards the animal
- Any attachment either of you or a child has to it
- Who has shown they can look after it in future without the other’s help
These rules cover animals kept mainly for companionship, not assistance animals or animals kept for business, farming and/or laboratory use.
What you should gather before a first appointment
Ensuring you have as much from this list as possible will save you time and help you get the most out of your first appointment:
- Every bank, share and trading account, including crypto exchanges and wallets
- Every superannuation fund you have ever belonged to, not just your current one
- Online betting accounts holding credit
- Any interest in a trust, company or business, and your role in it
- Every debt, including the mortgage, car loans, credit cards, personal loans and tax owed
- Anything either of you has bought since separating
- Pets, and who has looked after them
Does knowing what’s in the pool tell you how it will be divided?
No.
There’s no automatic 50/50 split for property or for time with children, and every pool is worked through based on its own facts.
This is general information, not advice about your situation. For direct advice from experts in family law about what belongs in your pool, call 1300 415 408 or use our contact form to book an appointment today.