Cryptocurrency and Divorce in Australia: What Happens to Bitcoin and Digital Assets?

What Is Cryptocurrency?

Cryptocurrency is digital value recorded on a blockchain — a distributed ledger maintained by a network of computers rather than by a central institution. The familiar examples are:

• Bitcoin — the original cryptocurrency, designed as a decentralised store of value;
• Ethereum — the leading platform for smart contracts and tokenised applications;
• Stablecoins — tokens pegged to a fiat currency such as the US dollar, designed to reduce volatility;
• Altcoins and tokens — thousands of other digital assets, with very different risk and liquidity profiles.

Holdings are accessed through a wallet — software or hardware that stores the private keys controlling the assets. Wallets can be hosted on an exchange (custodial), installed on a personal device (self-custody) or stored offline on a hardware device or paper backup (cold storage). The choice has significant consequences for both security and disclosure.

Is Cryptocurrency Property for Family Law Purposes?

Yes. "Property" is defined broadly in section 4(1) of the Family Law Act 1975 (Cth) as the property to which the parties are, or either of them is, entitled, whether in possession or reversion. Cryptocurrency has been treated as property to be included in the asset pool in first-instance decisions of the Family Court, including Powell & Christensen [2020] FamCA 944 — a case in which the Court dealt with the disclosure of, and add-back arguments concerning, an investment in Bitcoin on the particular facts before it. That decision is not appellate authority on the general characterisation of crypto assets, but it illustrates the orthodox treatment. Cryptocurrency is included in the asset pool when the Court determines a just and equitable division under section 79 (for married couples) or section 90SM (for de facto couples).

Cryptocurrency does not occupy a special category. It is assessed on the same broad framework as any other asset: identifying the pool, assessing contributions, considering future needs and reaching a just and equitable outcome. The difficulties lie in the practical work of identification, tracing and valuation, not in the legal characterisation.

Disclosure Obligations During Separation

Parties to family law proceedings are under strict obligations of full and frank disclosure. Since 10 June 2025, that duty has been set out expressly in section 71B of the Family Law Act 1975 (Cth), inserted by the Family Law Amendment Act 2024 (Cth), which requires each party to give the other all information, and to produce all documents, relevant to their financial matters and reasonably necessary for the other party to understand the true financial position. Section 71B operates during proceedings and — for separated parties — in the pre-proceeding phase while a proposed application is being prepared. It is not intended to convert every informal negotiation between separated parties into open-ended, indefinite disclosure. Section 71B sits alongside the long-standing procedural duty in Chapter 6, Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Cryptocurrency holdings fall squarely within the duty and must be disclosed:

• even where they are held on overseas exchanges;
• even where they are held in self-custody or cold storage;
• even where they are held through a related entity such as a company or trust;
• even where their value has fallen or appears insignificant.

Disclosure should extend not only to current holdings but to historic activity, including past purchases, sales, transfers and conversions. A clean disclosure trail can be assembled by providing exchange account statements, wallet addresses, transaction histories and tax records.

How Cryptocurrency Is Identified

Cryptocurrency holdings can come to light through a wide range of sources, including:

• direct disclosure by the holder;
• bank statements showing transfers to or from cryptocurrency exchanges;
• credit card statements showing exchange purchases;
• tax returns, where capital gains have been declared;
• subpoenaed records from Australian exchanges registered with AUSTRAC as digital currency exchange providers under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) — including exchanges such as CoinSpot, Independent Reserve, BTC Markets and Kraken Australia;
• device forensics revealing wallet applications, seed phrases or hardware wallet activity;
• email and cloud-storage searches for exchange confirmations and KYC documents.

A party who suspects undisclosed cryptocurrency should raise the issue early, request specific categories of disclosure, and if necessary apply for orders requiring the production of wallet addresses, exchange records and device images.

Can Cryptocurrency Be Hidden?

Cryptocurrency is sometimes presented as untraceable. In practice it is far less anonymous than that reputation suggests. Most blockchains are public — every transaction is permanently recorded and can be examined by anyone with the address. Australian exchanges are subject to anti-money-laundering and know-your-customer obligations, so accounts are linked to real identities. Cash on-ramps and off-ramps almost always leave a footprint in bank statements.

The truly anonymous corner of the market is small and specialised. The far more common pattern is partial concealment — failing to disclose particular wallets, downplaying values, or claiming that holdings have been lost. Where a party fails to provide a credible account of assets known to have existed, the Court can draw an adverse inference against them as to the existence or value of the missing asset, consistently with the approach applied to concealed or dissipated assets generally in cases such as Weir & Weir [1993] FamCA 3; (1992) FLC 92-338. The Court has tools for each of these scenarios, including preservation and disclosure injunctions under section 114 of the Family Law Act, and the consequences of being caught are significant.

Blockchain Tracing and Digital Forensics

Forensic accountants with blockchain analytics tools can:

• map flows of funds between wallets;
• identify clusters of wallets controlled by the same person;
• follow funds across multiple chains via bridges and swaps;
• identify points of contact with regulated exchanges where identity is known;
• reconcile blockchain activity with bank statements and tax records.

Tracing is not always conclusive, particularly where mixers, privacy coins or self-custody wallets are involved. But in many cases the available evidence is sufficient to identify undisclosed holdings or to demonstrate that disclosure is incomplete.

Valuing Cryptocurrency for Property Settlement

Valuation raises three distinctive issues.

Date of valuation. The Court ordinarily values assets at, or close to, the date of trial or settlement, not at separation. The precise valuation date, choice of exchange or price source, and any averaging methodology are evidence-specific — averaging across multiple exchanges is not a universal rule. Where values have moved significantly between separation and trial, the allocation of upside and downside is a matter for argument and, where necessary, judicial discretion.

Volatility. Cryptocurrency prices can move substantially within hours. The Court can address this risk by requiring sale of the holdings as part of the orders, valuing at a specified date close to settlement, or apportioning holdings in specie so that both parties carry equivalent risk.

Liquidity and tax. Realising large cryptocurrency positions may itself move the market. A disposal of cryptocurrency — a sale, or a conversion to another crypto asset — is ordinarily a CGT event under the Income Tax Assessment Act 1997 (Cth). Transfers between spouses do not automatically trigger a taxable gain: where the transfer is made in accordance with a qualifying court order, financial agreement or other eligible instrument on marriage or relationship breakdown, the mandatory relationship-breakdown rollover in Subdivision 126-A may apply, deferring the CGT consequences until the transferee disposes of the asset. Informal transfers between separating parties, or transfers not falling within the rollover criteria, may not be covered. The personal-use asset exemption is narrow — it is available only where the cost base of the crypto asset was less than $10,000 and the asset was, on the facts, kept or used mainly for the direct, near-term purchase of personal goods or services; crypto acquired or held as an investment does not qualify. Current ATO web guidance on relationship breakdown and personal-use crypto should be consulted for the position applicable at the relevant date. Orders should account for the net, after-tax realisable value of holdings, not just the headline figure.

What About NFTs and Other Digital Assets?

Non-fungible tokens, tokenised real-world assets, staked positions, liquidity pool interests and decentralised finance positions are all property and all must be disclosed. NFTs present particular valuation difficulties — each is unique, secondary markets can be thin, and prices can swing on sentiment. Expert evidence is often required where these assets are a material part of the pool.

Consequences of Failing to Disclose Cryptocurrency

The consequences of non-disclosure are serious and varied.

• Re-opening final orders. A property settlement obtained on the basis of miscarriage of justice — including by reason of fraud, non-disclosure or suppression of evidence — may be set aside on application under section 79A of the Family Law Act 1975 (Cth) (for married couples) or section 90SN (for de facto couples), subject to the statutory thresholds and the Court's discretion.
• Adjustment of remaining assets. The Court can effectively transfer additional assets to the wronged party to compensate for what was concealed.
• Costs orders. The defaulting party can be ordered to pay the other side's legal costs of investigating and remedying the non-disclosure.
• Adverse inferences. The Court can draw inferences against the defaulting party where disclosure is incomplete, accepting the other party's account in preference.
• Contempt and perjury. In serious cases, deliberate concealment may amount to contempt of court or perjury and attract criminal sanctions.

Practical Steps for Separating Couples

For parties dealing with cryptocurrency in a separation, the practical steps include:

• obtain advice early — before disclosure documents are completed;
• list every wallet, exchange account and holding, including historical activity;
• keep secure custody of seed phrases, hardware wallets and exchange logins — these are control credentials and should not be routinely handed over during disclosure;
• do not transfer, mix or otherwise obscure holdings during a separation;
• engage a forensic accountant where suspicions exist about the other party;
• consider tax advice before agreeing to sale or transfer of holdings.

For business owners whose digital assets are intertwined with a company or trading structure, the issue can extend beyond family law into commercial and succession planning. Our article on business exit strategy and the broader PPSR framework may be relevant where digital assets sit alongside a trading business.

When Professional Advice Is Required

Cryptocurrency in a separation almost always requires specialist input. Lawyers manage the family law framework and the conduct of disclosure. Forensic accountants reconstruct the true position from blockchain and banking records. Tax advisers manage the capital gains and other implications of disposal. Acting on these issues without specialist support risks either accepting a worse settlement than is fair or agreeing to one that triggers unforeseen tax or compliance consequences. Our Family Law team works alongside experienced forensic accountants and tax advisers in matters involving substantial digital asset holdings, and coordinates with our Commercial & Business Law team where the assets sit within a business structure.

Conclusion

Cryptocurrency is property. It must be disclosed. It can be traced. It can be valued. And it can be divided like any other asset. The cases that go badly are almost always the ones where one party assumes the rules do not reach them, or where the other party fails to insist on proper disclosure early. Treating digital assets with the same seriousness as a house, a superannuation balance or a share portfolio is the most reliable way to a fair settlement. For broader context on how the underlying property division works, see our article on whether assets are always split 50/50 after separation and our companion guide for de facto partners.

Frequently Asked Questions