Where a separating couple includes an emergency services employee or another Victorian public sector employee, the matter may involve an ESSSuper interest. Such an interest can be one of the larger assets in the pool, and a defined benefit interest cannot be valued from an account balance — it has to be valued by the method the Regulations or an approved instrument specify.
This guide explains where Victorian public sector superannuation sits in the federal splitting framework, which schemes attract approved valuation methods, and the practical steps involved. It assumes the general position set out in our guide to superannuation in property settlements, and the technical background in our guide to defined-benefit superannuation.
The same federal framework applies
State public sector superannuation is not outside family law. A payment split can be achieved by superannuation agreement (sections 90XH and 90XJ; for a de facto couple, a Part VIIIAB financial agreement that includes a superannuation agreement — section 90XHA) or by a splitting order under section 90XT, and a court cannot make a section 79 or 90SM order in relation to a superannuation interest except in accordance with Part VIIIB — section 90XS(2). Part VIIIB has effect despite anything to the contrary in any other Commonwealth law, any State or Territory law, and any trust deed or other instrument — section 90XB(1) — and “trustee” has an extended meaning that accommodates public sector arrangements — section 90XDA. Regulation 12 of the Regulations identifies the trustee for certain Commonwealth arrangements for the purposes of the definitions in sections 90XD and 90YD.
Preservation still applies. Where the plan is a constitutionally protected fund or an exempt public sector superannuation scheme, the non-member spouse’s entitlement is subject to any law or other instrument providing for payment of that entitlement into superannuation for that spouse’s benefit — section 90XZ(3). A split does not create accessible cash.
Which Victorian schemes have approved valuation methods
Regulations 62 and 70 of the Family Law (Superannuation) Regulations 2025 (Cth) allow methods and factors to be approved for valuing particular superannuation interests. Schedule 3 of the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 (Cth) — headed “Public sector superannuation plans — Victoria” — contains those approvals for Victoria. Its Parts are:
- Part 1 — the superannuation scheme established by the State Superannuation Act 1988 (Vic), new scheme members;
- Part 2 — the same scheme, revised scheme members;
- Part 3 — the Victorian State Employees Retirement Benefits Scheme;
- Part 4 — benefits provided under the Superannuation Benefits Act 1977 (Vic);
- Part 5 — benefits provided under the Transport Superannuation Act 1989 (Vic);
- Part 6 — the State Parliamentary Contributory Superannuation Fund;
- Part 7 — Victorian pension schemes for the Governor, Judges, Associate Judges, the Chief Magistrate, the Solicitor-General, the Director of Public Prosecutions and the Chief Crown Prosecutor.
Each Part is structured in the same way: definitions, then the method for interests in the growth phase, then interests in the payment phase, and (where relevant) the approved factors. Where the member’s interest falls within one of those Parts, that approved method governs the valuation.
Identify the scheme before valuing anything
This is the point at which mistakes are most often made. ESSSuper is the administrator of a range of Victorian arrangements, and Schedule 3 of the Approval is a list of named schemes and benefit arrangements — it should not be assumed to cover every interest a member may hold with ESSSuper. In particular, accumulation-style interests and arrangements not named in Schedule 3 are valued under the general rules in the Regulations — Part 6 for gross value in the growth phase (regulations 51 to 61) or the payment phase (regulations 64 to 69), applying Schedule 3 of the Regulations where the interest is a defined benefit interest.
Two schedules therefore carry the same number and must not be confused: Schedule 3 of the Regulations is the general defined benefit method, while Schedule 3 of the Approval is the set of Victorian scheme-specific methods. Any valuation should state which instrument, schedule and Part it relies on.
Practical way through: obtain the member’s scheme and product details in writing, confirm whether the interest is in the growth phase or the payment phase (regulations 7 to 9), and only then determine which method applies.
Getting information from ESSSuper
The federal information mechanism applies. An eligible person — including a spouse of the member — may apply to the trustee for information about the member’s superannuation interest, accompanied by a declaration in the prescribed form and any applicable fee — section 90XZB(1) and (2), with “eligible person” defined in section 90XZB(8); any fee is the fee payable under regulations made for the purposes of section 90XY — section 90XZB(2)(b). What the trustee must provide, and when, is set out in Part 9 of the Regulations: regulation 102 and Form 6 in Schedule 1 (the accompanying declaration), regulations 110 to 117 (defined benefit interests), regulations 103 to 109 (certain accumulation interests) and regulation 140 (how and when the information must be provided). For a pension already in payment, the trustee’s response must now also address invalidity, any guarantee period and any reversionary beneficiary who is a non-member spouse — regulation 112(1)(c)(iia), (iva), (v) and (vi), which apply to applications made on or after 23 July 2026 — regulation 149.
Where safety is a concern, note that the trustee must not provide a spouse with any address of the member — section 90XZB(5) — and must not tell the member that a non-member’s application has been received — section 90XZB(6).
ESSSuper publishes its own family law information and forms for members and non-member spouses, and a separate guide to family law court orders (FL8) explaining what the fund needs in order to give effect to an order or agreement. Its published description of who it serves is the starting point for identifying which arrangement a member holds. Using the fund’s current process, rather than a generic letter, avoids avoidable delay — and the information the trustee returns (including any accrued benefit multiple) is the foundation of the valuation.
Implementing a split in a public sector scheme
How the non-member spouse’s entitlement is satisfied depends on the scheme. The Regulations expressly contemplate public sector superannuation schemes in which a separate entitlement arises for the non-member spouse within the scheme, rather than an amount being transferred out — regulations 24 and 28. That is a different outcome from the rollover most people expect, and it affects how the orders should be drafted and what the non-member spouse can do with the entitlement later.
Other implementation points:
- Procedural fairness for the trustee. The court cannot make an order binding the trustee unless the trustee has been accorded procedural fairness — section 90XZD(1), which also contains specific rules for a secondary government trustee. Rule 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires written notice to the trustee not less than 28 days before the draft consent order is lodged or the Application for Consent Orders is filed. If the trustee does not object within 28 days of receiving that notice the application may be filed; if the trustee consents in writing earlier, the parties need not wait — rule 10.06(2) to (4). Provide the draft orders to the fund before they are made, and build the 28-day period into the settlement timetable.
- Service. Documents required or permitted to be served on the trustee may be served in the ways permitted under the Rules — section 90XZF.
- Fees. Trustees may charge reasonable fees in respect of a payment split or the operation of the Part — section 90XY and regulation 98. Deal with liability for those fees in the orders or agreement.
- Base amount or percentage. In a defined benefit scheme the two produce materially different results over time. Confirm the fund can administer the mechanism chosen.
- Flagging. Where a benefit is about to become payable — for example, where a member is approaching retirement or a medical discharge is in prospect — a flagging order under section 90XU may be preferable to splitting on uncertain figures.
Common issues in ESSSuper matters
- Pensions already in payment. Valuation moves to Division 2 of Part 6 of the Regulations, with different factor tables for indexation, guarantee periods and reversion — and separate treatment for invalidity pensions (Schedule 7 of the Regulations).
- Disability and invalidity benefits. Emergency services roles carry a higher incidence of injury-related benefits. The characterisation of the benefit affects both valuation and the current and future circumstances considerations in section 79(5).
- Service before the relationship. Long service predating cohabitation is relevant to contributions under section 79(4), but it is an argument about adjustment, not a reason to exclude the interest from the pool.
- Interests that cannot be split. The Regulations define an unsplittable interest in regulation 14, and section 90XT(1) excludes such interests from splitting orders.
- Disclosure. The duty of full and frank financial disclosure is set out expressly in the Act — section 71B for married couples, section 90RI for de facto couples — and extends to superannuation statements and scheme correspondence.
Time limits
The usual limits apply: generally 12 months from a divorce order taking effect for married couples — section 44(3) — and two years from the end of a de facto relationship — section 44(5). Later applications require the leave of the court.
When to get advice
Get advice before agreeing a figure for a Victorian public sector interest. The valuation rules are scheme-specific, the implementation mechanism may not be a rollover, and the trustee has to be brought into the process at the right time. We advise members and non-member spouses in matters involving Victorian public sector superannuation from our office in Ringwood.
This guide is general legal information about family law; it is not actuarial, taxation or financial product advice, and it is not published by or on behalf of ESSSuper. See our Family Law page for how we work.
