Updated 3 November 2026
CM Law’s Ultimate 50 Things You Need to Know About Property Settlement During Divorce #31: What if the property is overseas?
Can overseas property be included in an Australian property settlement?
Overseas property can be considered in an Australian family law property settlement where the court has jurisdiction. Its location does not automatically exclude it. However, identifying ownership, valuing the interest and implementing a transfer overseas are separate issues. Australian orders do not automatically change a foreign land register.
For separating couples in NSW, these proceedings are ordinarily dealt with in the Federal Circuit and Family Court of Australia. A holiday apartment, inherited land or overseas investment property needs investigation alongside Australian assets and debts.
When can an Australian court deal with overseas assets?
For married couples, property proceedings generally require either spouse to be an Australian citizen, ordinarily resident in Australia or present here when proceedings begin. Being married in Australia alone is insufficient. De facto couples face separate relationship and geographical requirements, so eligibility must be checked before assuming Australian jurisdiction.
The Family Law Act contains different tests for divorce and property proceedings. Foreign proceedings, existing orders and service overseas can also affect how a matter should proceed. Obtain coordinated advice before starting litigation in another country.
Does the court divide overseas property equally?
There is no automatic equal division of overseas property. Under the current property framework, the court identifies existing interests and liabilities, assesses contributions and current and future circumstances, and makes orders only where just and equitable. The economic effects of family violence are considered where relevant to that assessment.
The changes operating from 10 June 2025 apply to most current matters, subject to transitional rules. Assess the overall settlement rather than assuming that every individual asset must be sold or divided in identical proportions.
What if the property was inherited or belongs to relatives?
An overseas inheritance is not automatically excluded from a property settlement. Its timing, source and treatment may affect the assessment. Equally, land registered to a parent, sibling, company or trustee is not automatically owned by a spouse. The actual legal or beneficial interest must be identified using reliable evidence.
Obtain current title records and documents explaining any trust, company, ownership share or right of occupation. A family understanding that someone will eventually receive a property is different from an established ownership interest. Foreign law may be critical.
What overseas financial information must be disclosed?
Full and frank financial disclosure extends to relevant overseas interests, liabilities, income and resources, including interests held indirectly through companies or trusts. The duty applies before proceedings and continues while the dispute is being resolved. Keeping documents overseas or describing an asset as family property does not remove that obligation.
The court’s disclosure guidance explains the obligations under sections 71B and 90RI and the Family Law Rules. Provide relevant title documents, mortgage statements, rental records, bank statements, tax returns and transaction records. Explain missing documents and the steps taken to obtain them.
How should overseas property be valued?
Use a suitably qualified valuer with knowledge of the property’s local market, supported by accurate ownership and tenancy information. Agree on appropriate instructions and a valuation date. Record both the foreign currency figure and its Australian dollar conversion, including the exchange rate, date and source used for the calculation.
A real estate listing or relative’s estimate may be inadequate. The valuation should address relevant restrictions and the particular interest being valued. Separately identify mortgage balances and evidenced transaction costs; obtain updated figures if the market, exchange rate or property condition changes materially.
Will Australian orders transfer the overseas property?
Australian orders may direct a person to sell property, sign documents or pay money, but implementing those directions overseas depends on local law. Recognition, registration and conveyancing requirements vary. Foreign banks, co-owners and trustees are not automatically bound simply because an Australian court has made orders between separating partners.
Ask a lawyer in the property’s country to check the proposed settlement before it is finalised. The Attorney-General’s guidance explains why overseas enforcement needs local advice. Coordinate any required documents, lender consents, translations and registration steps with the Australian orders.
Can one person keep overseas property and the other retain Australian assets?
An arrangement where one person retains overseas property and the other receives Australian assets may be practical. It still requires reliable values, clear ownership and a just and equitable overall outcome. Compare debts, tax exposure, access to funds and implementation costs before treating assets in different countries as equivalent.
A nominally valuable overseas interest may be difficult to sell or recover. Settlement terms should identify who pays ongoing expenses, who receives rent, completion deadlines and what happens if a required transfer, payment or refinancing cannot be completed.
What if overseas property may be hidden or sold?
Seek prompt legal advice if there is evidence that overseas assets are being concealed, transferred or sold to defeat a claim. The court can consider applications restraining dealings with property inside or outside Australia. Such relief requires evidence, and obtaining Australian orders does not guarantee their effectiveness in another country.
Preserve records you can lawfully access, including relevant statements and transfer details. Your lawyer can consider disclosure requests, appropriate court processes and preservation measures under the Family Law Rules. Do not access another person’s accounts without authority. Non-disclosure can have serious consequences, but does not produce an automatic percentage award.
What taxes and exchange-rate issues should be checked?
Overseas property can create tax obligations in Australia and the country where it is located. Australian tax residents generally need to consider overseas income and capital gains, subject to applicable exemptions. A qualifying relationship-breakdown rollover can defer Australian capital gains tax, but does not automatically remove foreign taxes or charges.
The ATO’s rollover guidance requires a qualifying court order or formal agreement; an informal division is insufficient. Where rollover applies, the recipient generally takes over relevant cost-base history. The settlement valuation is not automatically a new tax cost base.
Keep acquisition and improvement records. Tax calculations may require historical currency conversions, rather than one current exchange rate. Obtain coordinated tax advice before agreeing to transfer or sell.
What does Galloway & Midden show about overseas ownership?
In Galloway & Midden (No. 2) [2014] FamCAFC 60, the Full Court, sitting in Brisbane, considered overseas properties registered in other people’s names. The appeal demonstrates why a settlement must identify the party’s actual interest and address whether that person can obtain ownership or control, including the potential recovery costs.
The trial judge had included the properties’ $353,488 value in the asset pool and treated them as part of Ms Galloway’s entitlement. However, the judge had not identified her existing legal or equitable interest, explained available remedies or allowed for the possible cost of pursuing them. Foreign law and registration difficulties also needed consideration.
The Full Court allowed the appeals in part, set aside relevant orders and ordered a rehearing. It did not finally exclude the properties or decide that Australian courts cannot deal with overseas assets. Although decided before the 2025 reforms, the case illustrates the importance of ownership evidence and workable orders.
What should you prepare before negotiating a settlement?
Prepare a clear record of each overseas asset, the people or entities involved and the documents supporting ownership and value. Give your Australian lawyer details of any overseas proceedings or proposed transactions. Early coordination with local lawyers, valuers and tax advisers can identify obstacles before settlement terms become binding.
- Collect current title searches, ownership shares, mortgages, leases and any restrictions on transfer.
- Gather purchase, inheritance, company or trust documents and arrange reliable translations where necessary.
- Obtain valuations, debt balances and advice about taxes, registration costs and transferring sale proceeds.
When should you seek legal advice?
Seek advice early, especially where ownership is disputed or property might be transferred. Property applications generally must begin within twelve months after a divorce order takes effect, or two years after a de facto relationship ends. Exceptions and foreign divorce issues require individual advice; do not assume negotiations suspend deadlines.
You can address property before divorce. CM Lawyers’ property settlement team can review your Australian position and the issues requiring overseas advice. Contact Christine Manolakos and the team before signing settlement terms involving foreign property.
General information only, current at 3 November 2026. Have a lawyer check your circumstances, overseas ownership documents and proposed settlement before relying on this guide.
Key resources
Family Law Act 1975 — jurisdiction, property adjustment and financial disclosure requirements.
Attorney-General’s guide to the June 2025 property reforms — the current settlement framework and transitional rules.
FCFCOA guidance on financial disclosure — relevant documents and continuing disclosure obligations.
Family Law Rules 2021 — disclosure, expert evidence and applications restraining property dealings.
Attorney-General’s guidance on overseas enforcement — recognition issues and the need for local advice.
ATO guidance on foreign and worldwide income — overseas income and gains for Australian tax residents.
ATO guidance on relationship-breakdown rollover — qualifying transfers and Australian CGT deferral.
Galloway & Midden (No. 2) [2014] FamCAFC 60 — judgment addressing ownership and recovery of foreign property.
FCFCOA guidance on applying for orders — property applications and general time limits.
