with Melody van der Wallen, Principal Lawyer at Wallen Family Law

For many families, the family business is both a livelihood and a legacy — which makes it one of the most sensitive assets to deal with during separation.

Questions often arise about who keeps the business, how it’s valued, and whether it has to be sold.

Melody van der Wallen, Principal Lawyer at Wallen Family Law, says these cases require careful handling. “A business isn’t like a house or a bank account,” she explains. “It’s dynamic, and its value depends on the people running it.”

Businesses Are Part of the Asset Pool

Under the Family Law Act 1975 (Cth), all assets owned by either party — including companies, trusts and business interests — form part of the asset pool to be divided.

This means that even if a business is registered in one partner’s name, it’s still taken into account when assessing the total property available for division.

“The Court looks beyond whose name it’s in,” Melody explains. “If both partners contributed — financially or non-financially — it forms part of the overall settlement.”

How a Business Is Valued

Business valuation is a critical step in determining the overall asset pool.

A qualified business valuer is often engaged to provide an independent valuation, taking into account assets, income, goodwill and liabilities.

“We always recommend using a single expert jointly appointed by both parties,” Melody says. “It saves time, cost and reduces argument over competing figures.”

The valuation reflects what the business would be worth if sold on the open market — but that doesn’t mean it has to be sold.

Keeping or Dividing the Business

Once the value is known, there are a few ways to divide it fairly.

One person may retain the business and pay the other their share through a cash adjustment, refinance or transfer of other assets such as property or superannuation.

Alternatively, both parties may agree to sell the business and divide the proceeds.

“In most cases, the Court prefers to let the party most capable of running the business keep it,” Melody explains. “That preserves its value and ensures continuity for employees and customers.”

Where the parties can cooperate, transitional arrangements may also be negotiated — such as one person stepping out gradually or remaining in an advisory role for a short period.

Companies and Trust Structures

If the business operates through a company or trust, the Court examines how those entities are controlled.

“Control is key,” Melody says. “The Court looks at who actually makes the decisions — not just who’s listed as a director or beneficiary.”

Complex structures involving family trusts, shareholder loans or related entities require detailed financial disclosure and may require assistance from a jointly appointed expert like an accountant to ensure all assets are properly identified.

What If You Both Work in the Business?

When both partners work in the business, separation can become especially challenging.

“It’s often not realistic to keep working together long-term,” Melody explains. “We help clients plan a transition that protects the business while allowing each person to move forward.”

This may include interim agreements about income, roles or management responsibilities until the final settlement is reached.

Quick Answers

Is my business included in the property settlement?
Yes. All business interests form part of the asset pool, regardless of whose name they’re in.

Does the business have to be sold?
Not necessarily. One party can often keep the business and pay out the other’s share, or offset it against other assets.

How is a business valued?
An independent expert (usually a business valuer) determines its market value based on assets, earnings, goodwill and liabilities.

What if the business is in a company or trust?

The Court looks at control — who effectively manages and benefits from it — not just ownership on paper.

Can I keep working with my ex in the business?
Sometimes temporarily, but it’s rarely sustainable long-term. Clear agreements or staged exits are often necessary.

From Melody

“Businesses are more than numbers — they’re built on years of effort and sacrifice. Our job is to protect that value while achieving fairness for both parties, so you can move forward with stability and confidence.”

– Melody van der Wallen, Principal Lawyer, Wallen Family Law