Updated 4 November 2026
CM Law's Ultimate 50 List - Separated Couples FAQ #9: What steps should be taken to protect personal assets?
Explore CM Lawyers’ property settlement services.
After separation, financial security starts with accurate information and sensible arrangements for the weeks ahead. Moving assets into another name or relying on a trust label can make matters harder. Preserve records and value, manage essential commitments and understand your rights before making changes that may be difficult to reverse.
What does protecting personal assets mean after separation?
Protecting assets means preserving their value, understanding ownership and liabilities, keeping reliable records and obtaining a lawful settlement. It does not mean hiding property or defeating another person’s rights. The family law assessment considers property, contributions and current and future circumstances; there is no automatic equal division or guaranteed protected category.
The current property framework also considers relevant economic effects of family violence. Protection should support financial stability and informed decisions. My practical advice is to establish what exists and what needs preserving before considering any change of ownership.
Are assets in my sole name automatically excluded?
No. Sole ownership does not automatically remove an asset from a family property settlement. Property brought into the relationship, inheritances and gifts may be relevant contributions, but their treatment depends on the circumstances. Keeping funds separate can help explain their source without guaranteeing that the other person has no claim.
Keep evidence of dates, amounts, use and any later contributions by either person. Legal Aid NSW explains property settlements. Avoid assuming a short relationship, a separate account or an inheritance produces a fixed percentage outcome without examining the whole situation.
Which records should I preserve first?
Gather lawful copies of bank statements, tax records, loan documents, title information, superannuation statements and business or trust records. Record significant gifts, inheritances and contributions. A dated list of assets, debts and ongoing expenses helps your advisers identify immediate risks and distinguish evidence from assumptions about what belongs to whom.
The financial checklist provides a useful starting point. Preserve original documents and transaction histories securely. Do not destroy records, alter files or access accounts without authority. If documents are unavailable, your lawyer can explain appropriate requests and formal disclosure options.
Should I open a separate bank account?
A separate account may help manage income and essential spending after separation, but it does not determine your final property entitlement. Review shared banking access, cards and direct debits with the bank. Before moving joint funds, obtain advice about necessary living expenses, existing obligations and the effect on both households.
Moneysmart explains joint-account risks. Ask what instructions the bank can accept where account holders disagree. Keep a clear record of withdrawals and payments. Avoid emptying an account simply to gain bargaining power or leaving essential commitments without a payment plan.
You can agree how responsibility should be shared between you, but that agreement does not automatically release either borrower from the lender’s contract. Refinancing, repayment or the creditor’s consent may be needed. Check guarantees and linked accounts as well as the loan balance before treating a debt as someone else’s problem.
The government’s separating-with-debt guide addresses these issues, including financial abuse. Contact the lender promptly if repayments are at risk. A settlement should specify how release will be obtained and what happens if the proposed refinance cannot proceed.
Must I disclose assets I believe are mine alone?
Yes, relevant property and financial information must be disclosed even where you argue an asset should ultimately remain yours. The duty includes timely, full and frank disclosure during relevant preparation for proceedings and throughout the case. It can extend to interests in companies, trusts, overseas property and transactions affecting the asset pool.
The Court lists financial disclosure requirements. Disclose the documents and explain your position rather than withholding them. Non-compliance can affect the case and lead to serious consequences. A confidentiality concern should be raised with your lawyer, not used to conceal relevant information.
Will putting assets into a trust or company keep them safe?
Not automatically. The court examines the actual interests, powers, control and financial resources involved, together with relevant transactions. A company or trust does not become irrelevant merely because its assets are not registered personally. Equally, every asset held by an unrelated trust is not automatically part of a couple’s property.
Provide the deed, variations, accounts, loan records and details of directors, trustees and appointors. The Kennon v Spry decision illustrates why the structure must be examined carefully. Changing paperwork shortly before separation can create further disputes and tax or duty consequences.
Can I give assets to family members before settlement?
Do not assume a gift, sale or transfer will remove an asset from consideration. The Family Law Act allows the court, in appropriate circumstances, to restrain or set aside transactions that defeat or would defeat anticipated orders. Third-party rights and the transaction’s purpose and effect require careful examination before acting.
Section 106B is relevant to such dealings. Ordinary necessary spending is different from deliberately disposing of value to frustrate a claim. Keep records, obtain advice and comply with existing orders; disguising a transfer as a family loan does not resolve the problem.
Obtain urgent legal advice if there is a concrete risk of assets being transferred, dissipated or placed beyond effective recovery. An injunction or other interim order may be appropriate, but it requires evidence and properly framed relief. An urgent listing is not automatic simply because separation has become difficult.
Save transaction notices, communications and other lawful evidence of the risk. The Court explains urgent financial applications, including supporting affidavits. Urgency or family violence can also affect pre-action requirements. Do not wait for a scheduled mediation if immediate protection may be needed.
Can I protect the home by changing locks or lodging a caveat?
Neither step should be treated as an automatic asset-protection solution. Occupation, ownership, safety and any existing orders are separate issues. A caveat requires a proper legal basis, not merely concern about a future property settlement. Obtain advice before excluding an owner, altering title arrangements or trying to prevent a sale.
Identify who owns the property, who owes the mortgage and whether there are safety concerns. A court order may be needed to regulate occupation or dealings. Keep insurance and essential payments under review while longer-term arrangements are resolved.
Would a binding financial agreement help?
A properly prepared financial agreement can address property and maintenance before, during or after a relationship. It must meet statutory requirements, including independent legal advice for each party. It is not an unchallengeable guarantee: the court can set an agreement aside on recognised grounds, including some cases of fraud or unconscionable conduct.
The Court explains financial agreements. Allow time for advice and accurate disclosure. Do not present a document as something your partner must sign immediately. An agreement made under improper pressure can generate litigation rather than the certainty both people intended.
Should I review my will and superannuation nominations?
Yes. Separation can leave existing estate-planning arrangements operating in ways you no longer intend. Review your will, powers of attorney, superannuation nominations and insurance beneficiaries with appropriate advisers. These documents have different rules, and changing one does not necessarily change the others or resolve your family property obligations.
Legal Aid NSW confirms that separation alone does not revoke a will. Joint tenancy and superannuation may operate outside the will. Review authority to act and succession arrangements promptly, while obtaining advice before making changes that affect jointly owned property.
What happened in Kennon v Spry?
Kennon v Spry [2008] HCA 56 shows why a discretionary trust is not a guaranteed shield in a family property dispute. Dr Spry had established a trust before marriage, later changed beneficiary arrangements and transferred trust assets to trusts for the couple’s children. Those steps did not defeat the wife’s claim.
The trial court set aside the relevant 1998 variation and 2002 dispositions and ordered a payment to the wife. The High Court dismissed the appeals. Its reasoning examined the trust terms, the husband’s powers and the wife’s rights, rather than simply declaring every family trust a sham. The decision does not mean all trust assets belong to a spouse or that third-party interests can be ignored. It demonstrates the importance of reviewing the actual structure and obtaining advice before transferring assets in anticipation of separation.
How do I turn temporary protection into a final settlement?
Temporary arrangements preserve stability but do not necessarily end financial claims. Once information is available, consider negotiation and appropriate formal documentation, such as consent orders or a valid financial agreement. Property applications generally have deadlines of twelve months after divorce takes effect or two years after a de facto relationship ends.
You need not wait for divorce to address property. Consent orders are binding; de facto jurisdiction also has eligibility requirements. Late proceedings may require court permission or valid consent. Negotiations do not suspend deadlines, so obtain advice well before time expires.
How can CM Lawyers help protect my position?
CM Lawyers can review ownership, contributions, debts and immediate risks, advise on disclosure and financial agreements, and help negotiate or seek appropriate court orders. We can also coordinate your estate-planning review. The objective is to preserve value and reach a workable lawful outcome, with clear steps for implementing any agreement.
Discuss property settlement advice or updating your will on 02 9557 9000 or lawyers@cmlaw.com.au, or contact us. Our office is Level 3, Unit 3.07, 18–30 Faversham Street, Marrickville NSW 2204.
General information only, current at 4 November 2026. Obtain advice tailored to your circumstances.
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