Family Law Superannuation Regulations 2025: How Super Is Split in Divorce

Superannuation is often the most valuable asset in a separation — sometimes larger than the family home equity — yet it's the most commonly mishandled. Many people assume super can't be touched in a divorce, or that it's automatically split 50/50. Neither is true.

Superannuation splitting under Australian family law is governed by a specific technical regime: the Family Law (Superannuation) Regulations, which were updated in 2025. Getting this wrong doesn't just mean a worse outcome — it can mean the court refuses to seal your orders.

Super Is Property, But Different Property

Superannuation is legally classified as property under the Family Law Act 1975, meaning it forms part of the global asset pool that gets divided. However, it's treated differently from other assets in one critical way: the split portion must remain inside the superannuation system.

You cannot cash out your ex-partner's superannuation as part of a settlement. The split creates a new interest in the receiving party's name inside the fund, and that interest remains subject to the standard preservation rules — it cannot be accessed until the receiving party reaches their preservation age (currently 60 for most people) and meets a condition of release.

This has significant practical implications for negotiation. A $200,000 super split is not the same as $200,000 cash. The receiving party may not access that money for 20 or 30 years. When calculating the net value of what each party receives, this time-value difference matters.

What the 2025 Regulations Cover

The Family Law (Superannuation) Regulations 2025 prescribe:

• The methods for valuing different types of superannuation interests (accumulation, defined benefit, pension phase)
• The interest rate factors used to calculate the value of defined benefit pensions
• The procedural requirements for obtaining trustee valuations and serving notice
• The forms required for the formal splitting process

The regulations are technical documents primarily used by actuaries and fund administrators. What matters for separating couples is understanding the practical steps the regulations require.

Step 1: Identify Which Funds Are Involved

Before any valuation can occur, both parties must disclose all superannuation interests. This includes:

• Industry funds (AustralianSuper, Hostplus, HESTA, Rest, etc.)
• Retail funds (Colonial First State, MLC, BT, etc.)
• Victorian public sector funds: Emergency Services & State Super (ESSS, now part of Vision Super), State Super (SSS for older Victorian public servants), and defined benefit schemes for teachers and emergency workers
• Self-managed superannuation funds (SMSFs)
• Commonwealth public sector schemes: Commonwealth Superannuation Scheme (CSS), Public Sector Superannuation Scheme (PSS) — for partners who worked federally

If you don't know what funds your partner holds, the FCFCOA portal provides a mechanism to request this information from the ATO. This court-initiated information request is available if you have an active court proceeding.

Step 2: Obtain an Official Valuation (Form 6)

For accumulation funds — by far the most common type — the current member balance is usually a reliable indicator of value. But the Regulations require that an official valuation be obtained from the fund trustee using the Form 6 Declaration (Superannuation Information Request Kit).

The process:

1. Complete the Form 6 Declaration and a Superannuation Information Request Form
2. Send both to the trustee of the relevant fund
3. The trustee returns a completed Superannuation Information Form showing the interest's value calculated under the Regulations

For defined benefit funds — including Victorian emergency services, teacher, and public servant schemes — this process is more complex. Standard member statements are legally insufficient and will be rejected by the court. The fund must provide an actuarial valuation using the specific factors in the Family Law (Superannuation) Regulations 2025. Specialist services like ConnectingTheDots provide these valuations for defined benefit schemes.

For self-managed superannuation funds (SMSFs), a current trustee-prepared valuation of the fund's underlying assets is required. If the SMSF holds property, shares, or illiquid investments, an independent valuer may be needed.

Step 3: Agree on the Split Amount or Percentage

Superannuation can be split in two ways:

• A percentage of the interest (e.g., 50% of the member spouse's interest)
• A base amount — a fixed dollar figure transferred to the non-member spouse

For accumulation funds, a base amount is usually more precise. For defined benefit funds, percentages are common because the underlying value changes over time.

The split terms are negotiated as part of the broader property settlement. Super doesn't have to be split in the same proportion as other assets — parties frequently agree to one spouse retaining a larger share of super while the other receives more of the liquid assets or home equity.

Step 4: The 28-Day Procedural Fairness Requirement

This is where many DIY attempts fail.

Before you can file an Application for Consent Orders that includes a superannuation split, you must serve written notice of the proposed splitting order on the fund trustee at least 28 days before filing. The trustee is granted "procedural fairness" — the right to object to the proposed terms if they create administrative problems or are technically incorrect.

If the trustee doesn't object within 28 days, you proceed. If they do object, you must resolve their concerns before filing.

What to serve on the trustee:

• The draft proposed superannuation splitting order (the exact terms you intend to include in the Consent Orders)
• A copy of the relevant member's current member statement
• Written notice that you intend to file these orders in the FCFCOA

File proof of this service alongside your Consent Orders application. Without it, the court cannot make the superannuation order.

Step 5: After the Orders Are Sealed

Once the FCFCOA seals the Consent Orders, you send a certified copy to the fund trustee to execute the split. The trustee then:

1. Creates a new account in the receiving party's name (or transfers the amount to their nominated fund)
2. Deducts the split amount from the member spouse's balance
3. Issues confirmation to both parties

For accumulation funds, this process typically takes a few weeks. For defined benefit funds, the process is more complex and can take longer.

Key Differences Between Fund Types

When Super Splitting Isn't Worth the Complexity

For small balances, the administrative cost and delay of a formal superannuation split can exceed its value. Trustee fees, actuarial valuation fees, and the complexity of the 28-day notice process mean that splitting a $15,000 super balance may not be worth the effort.

In these cases, parties sometimes offset the super against other assets — one party keeps more of the cash or home equity, while the other retains their super intact. This avoids the procedural requirements but requires both parties to genuinely account for the super balance's present value in the overall settlement.

The Victoria Divorce Financial Split & Asset Division Guide includes a complete superannuation splitting roadmap — covering how to request Form 6 valuations from major Australian funds, how to draft the trustee notice, how to structure the split in your Consent Orders, and the steps to execute the split after orders are sealed.

See more Victoria guides →