When founder shares become family property: lessons from Charis & Charis
In an era when family law property pools increasingly include start-up equity, offshore entities and illiquid founder interests, Charis & Charis [2026] FedCFamC1A 92 (17 June 2026) is a significant Full Court decision on post-separation wealth creation. The case involved a technology founder whose shares and options in a United States quantum computing company grew dramatically after separation, yet the Full Court upheld an equal division of net assets of approximately $127.8 million. The decision reinforces that financial success after separation does not necessarily displace a long history of financial, non-financial and homemaker contributions.
Background
The facts were unusual not merely because of the size of the pool, but because the case required the Court to deal with wealth generated through one party’s professional work, held through an overseas corporate structure, and said to be affected by restrictions on transfer. The parties began cohabiting in 2005, had two children in 2008 and 2010, and separated sometime between September 2019 and March 2020. During the relationship, the husband received 2.5 million founder shares and 1.725 million options in D Company, with the shares valued at AUD$75,746,154 by July 2025 and the options vesting progressively between December 2019 and November 2023.
The appeal
The appeal was dismissed by Wilson, Riethmuller and Schonell JJ. The statutory pathway was central: the Court was required under section 79(3) to identify existing legal and equitable interests and liabilities, under section 79(4) to assess contributions, and under section 79(5) to consider current and future circumstances before determining whether the orders were just and equitable. Applying that framework, the Full Court upheld the primary judge’s equal assessment of contributions and confirmed that it was open to reject a two-pool approach in favour of a holistic assessment of the whole property pool, even where the husband relied on a post-separation increase from about USD$5.2 million to USD$49.325 million in the value of the common stock.
Contributions
The contribution reasoning is the heart of the decision. The point is not that entrepreneurial effort is irrelevant; rather, Charis confirms that the court will not equate market value, especially value produced within a broader corporate enterprise, with the qualitative worth of one party’s contribution to the marriage.
The Full Court’s analysis sits with Jabour & Jabour, Dickons v Dickons, Fields & Smith, Marsh & Marsh and Farmer & Bramley: section 79 calls for an evaluative assessment of the totality of financial, non-financial and homemaker contributions, not a mathematical attribution of later asset growth to one party. In practical terms, the wife’s ongoing post-separation care of the children was not eclipsed by the husband’s continuing executive role.
What is 'property'
On characterisation, Charis is equally useful. The husband argued that contractual and United States securities law restrictions meant his shares and options were not “property” for section 79 purposes. The Full Court rejected that submission, holding that shares and options are choses in action and therefore property, as per Kennon v Spry (and a 1920’s publication of the Harvard Law Review amongst other sources).
The practical lesson is that restrictions on transfer may affect the valuation of the asset, implementation and machinery orders, but they will not necessarily prevent the interest from forming part of the property pool.
The foreign-law issue should also be read practically rather than technically.
The United States Securities Act of 1933 and Securities Exchange Act of 1934 were before the Court under section 174 of the Evidence Act 1995 (Cth), and the Full Court accepted that foreign law is a question of fact. In the absence of admissible expert evidence explaining the operation of those statutes (noting the husband’s solicitors produced an expert report on the issue the weekend prior to the Monday commencement of trial and that evidence was refused), it was open to the primary judge to construe the admitted statutory materials by applying Australian principles.
Professional significance
The Full Court was also satisfied that the evidence disclosed pathways by which the shares could be transferred, including because a court-ordered property adjustment was not necessarily a “sale”, because Regulation section could apply to an offshore transaction, and because statutory exemptions were potentially available.
The message for litigants is straightforward: if foreign law is said to prevent implementation of property orders, the point should be proved early, precisely and by admissible evidence.
For practitioners, the case has three immediate consequences.
First, parties dealing with start-up equity, founder stock, vesting options, foreign entities or securities-law constraints should identify early whether foreign-law expert evidence is required and should ensure the primary transfer documents are produced well before trial – that seemed to be a failure here.
Secondly, practitioners should not assume that illiquidity or transfer restrictions will remove an asset from the section 79 exercise; those matters may instead go to valuation, implementation or the machinery of orders. Thirdly, proposed machinery orders should be drafted before the final hearing rather than left to enforcement, particularly where the asset is offshore, privately held or subject to corporate approval.
Evidentiary burden
The case also underscores the evidentiary burden in post-separation wealth cases. It was not enough for the husband to point to the increase in D Company’s value while he remained CEO, because the Court accepted that the growth reflected the broader corporate enterprise and the advantages produced by a long relationship in which both parties had contributed. Advising clients after Charis therefore requires caution before advancing an asset-by-asset or post-separation windfall argument, unless the evidence can establish both the asserted causal link and why that link should outweigh the holistic assessment required by section 79(3), section 79(4) and section 79(5).
Conclusion
Looking forward, Charis is likely to become a leading reference point in high-value property matters involving technology founders, illiquid equity and overseas corporate structures. Its enduring consequence lies not in the size of the pool, but in its reaffirmation that Australian family law assesses wealth through the whole history of the parties’ contributions, rather than by rewarding the party whose efforts are most visibly reflected in the balance sheet.
The open question is not whether complex equity can be property; Charis makes clear that it can be. The harder question for future cases is how courts should craft workable machinery where foreign securities laws, shareholder agreements, vesting conditions and liquidity constraints make implementation difficult.
Authored by Elise Fordham of Hitch
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Elise Fordham is a Principal Lawyer at Hitch and leads the Family Law team. She advises and acts on a broad range of family law matters with particular expertise in complex parenting disputes, property and financial settlements, family violence matters, and child support.
Elise brings a rare combination of legal precision and financial acumen to her practice, holding dual qualifications in law and in accounting. This expertise sets her apart when dealing with complex asset pools, including trusts, business structures, self-managed superannuation funds, and internationally held assets.
She is also a qualified Parenting Coordinator and has completed the National Legal Aid Independent Children’s Lawyer Training Program.
Whilst Elise regularly appears in proceedings at all levels of the Federal Circuit and Family Court of Australia, she is a strong advocate for resolving matters outside of the courtroom wherever possible. She takes pride in achieving commercial, practical, and cost-effective outcomes for her clients.
Elise is regarded by colleagues as a strong yet amiable advocate, and her clients regularly refer family, friends, and colleagues to her.