Family Law for Business Owners in Victoria

What this practice area covers

This page anchors our work for clients whose separation runs through a private business. The cluster includes founders and operating shareholders of private companies, professional services partners, directors of family-owned groups, and senior executives whose remuneration is structured through equity, options, or carried interest. It also covers spouses of business owners who are negotiating from the other side of the same questions.

The work is different from generalist family law work for two reasons. First, the asset pool is dominated by illiquid, contested-value interests rather than a home and a superannuation balance. Valuation, structure, and control become the central questions, not the percentage split. Second, the conduct of the business during the separation has consequences beyond the family law matter. A director under personal pressure can still breach director duties, trigger shareholder claims, or compromise the company's bank covenants. We act on matters where these issues meet, and we coordinate with the firm's commercial practice when the family law and corporate exposure cannot sensibly be separated.

We do not act on consumer-volume family law work. Our family practice is built for matters where senior counsel is required from the first conference, including engagements running concurrently with shareholder disputes, capital events, or estate planning reviews.

The legal framework in Australia

Separations involving business assets are governed by the Family Law Act 1975 (Cth), applied by the Federal Circuit and Family Court of Australia. The four-step approach to property division under section 79 still applies, but the work shifts almost entirely into questions of identification and valuation.

The threshold case is Stanford v Stanford (2012) 247 CLR 108. The High Court confirmed that the Court must first ask whether it is just and equitable to make any order altering existing property interests. For separated couples this is rarely contested, but for intact relationships in business contexts, including pre-separation BFAs, the Stanford gateway is the foundation of the analysis.

For business owners specifically, three sections of the Act do most of the work. Section 79 governs the alteration of property interests. Section 106B allows the Court to set aside transactions designed to defeat a claim, including the pre-separation share transfers, dividend reclassifications, and trust resettlements that often surface in private company matters. Sections 90B to 90G govern Binding Financial Agreements: the principal mechanism for protecting business equity entering or exiting a relationship.

Thorne v Kennedy (2017) 263 CLR 85 reframed how Binding Financial Agreements are reviewed. The High Court recognised unconscionable conduct and undue influence as live grounds where one party's bargaining position was significantly weaker. For business owners, Thorne v Kennedy means that a BFA executed under time pressure, without genuine financial disclosure, or without substantive independent advice, is exposed years after signing. Drafting and process matter as much as the document.

The most consequential business owner decision in Australian family law remains Kennon v Spry (2008) 238 CLR 366. The High Court held that where one spouse effectively controls a discretionary trust, the trust assets can be treated as property of that spouse for the purposes of section 79. Kennon v Spry is the foundation for every contested family trust matter that runs through this firm.

Director conduct during separation is governed by the Corporations Act 2001 (Cth). Sections 180 to 184 impose duties of care, good faith, and use of position. These duties continue regardless of personal circumstances. We have seen separating directors take steps that look prudent from a family law perspective, such as withholding information from a co-director spouse, that create personal exposure under the Corporations Act and shareholder oppression risk under Part 2F.1. The two regimes do not yield to each other.

How we work across this area

Our approach starts with structural mapping rather than negotiation positioning. Before any letter goes out, we map the corporate structure, the trust deeds, the shareholder agreements, the director composition, and any pre-existing financial agreements. This is usually completed inside the first two conferences. The structural map drives every subsequent decision: what to disclose, when to instruct a single expert, whether to seek interim orders, and which third parties need to be on notice.

Where the matter has a corporate dispute layer, we run the family law and commercial workstreams together rather than in sequence. This is often the difference between a settled business and one that is materially diminished by the time orders are made. We work with the client's accountant, corporate counsel, and family office where they exist, and we are comfortable instructing forensic accountants and valuers from the firm.

Tone of communication matters in business owner matters. Where children are involved, where co-directors are watching, and where the business has staff and customers, the worst outcomes often come from process aggression rather than legal weakness. We are direct in correspondence and at the bar table, and measured in everything else. Reputational management is part of the brief.