For many separating couples, superannuation is the second-largest asset after the family home — and sometimes the largest. It is also the asset most often misunderstood. Two misconceptions are common: that superannuation is untouchable because it is “locked away”, and that a superannuation split converts retirement savings into money that can be spent now. Neither is right.
This guide explains how superannuation is treated in a property settlement, the two ways a split can be achieved, how an interest is valued, and the procedural steps that involve the fund trustee. It is a companion to our broader guide on how property is divided after separation.
The statutory framework
Superannuation splitting has its own Part of the Family Law Act 1975 (Cth). Part VIIIB (sections 90XA to 90XZJ) is the operative Part for couples in Victoria. Its object is to allow splittable payments in respect of a superannuation interest to be allocated between the parties to a marriage or the parties to a de facto relationship, either by agreement or by court order — section 90XA.
- Married couples — the property order is made under section 79, and the superannuation orders are made in accordance with Part VIIIB;
- De facto couples in Victoria — the property order is made under section 90SM, in Part VIIIAB, and the superannuation orders are again made in accordance with Part VIIIB. There is no separate Victorian superannuation Part.
For de facto couples the Part VIIIAB gateways have to be satisfied first. A court may only make a section 90SM order if it is satisfied of at least one of the matters in section 90SB — that the relationship lasted at least two years in total, or that there is a child of the relationship, or that the applicant made substantial contributions and a failure to make an order would cause serious injustice, or that the relationship was registered under a prescribed State or Territory law. A geographical connection is also required: one or both parties must have been ordinarily resident in a participating jurisdiction when the application was made, together with the further residence or substantial-contributions condition, or alternatively both parties were ordinarily resident in a participating jurisdiction when the relationship broke down — section 90SK. Proceedings must ordinarily be instituted within two years after the end of the relationship, unless both parties consent or the court grants leave — sections 44(5) and 44(6). Being in a de facto relationship does not by itself mean the Family Law Act property regime is available, and eligibility should be assessed on the facts.
Part VIIIC (sections 90YA to 90YZY) is sometimes mistaken for the de facto counterpart of Part VIIIB. It is not. It is headed “Superannuation interests relating to Western Australian de facto relationships”, and it exists because Western Australia has not referred de facto financial matters to the Commonwealth in the same way as the other States. Section 90YY — the splitting order provision in that Part — has no application to a Victorian de facto couple, whose splitting order is made under section 90XT.
In proceedings under section 79 or 90SM the court may also make orders in relation to superannuation interests, but only in accordance with Part VIIIB — sections 90XS(1) and 90XS(2). A superannuation interest is treated as property for the purposes of the definitions of matrimonial cause and de facto financial cause — section 90XC. Part VIIIB also 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).
There are limits. A court cannot make a section 79 or 90SM order with respect to a superannuation interest if the interest is covered by a superannuation agreement that is in force, if the non-member spouse has served a waiver notice, or if a payment flag is operating — section 90XO(1). That does not stop the court taking superannuation into account when making orders about other property — section 90XO(2).
Two ways to split superannuation
There are two mechanisms, and they are alternatives rather than steps in a sequence.
1. By agreement
Spouses may make a superannuation agreement, which must be included in a financial agreement under Part VIIIA (married couples) or a Part VIIIAB financial agreement (de facto couples) — sections 90XH and 90XHA. A payment split under an agreement operates from the operative time — sections 90XI and 90XJ. A payment split under a superannuation agreement generally requires a separation declaration, which must be in writing, signed by at least one spouse, and state that the parties are married (or lived in a de facto relationship) but are separated at the declaration time — section 90XP.
2. By court order
The court may make a splitting order under section 90XT. The same section applies whether the property order is made under section 79 or section 90SM, because section 90XS(1) allows superannuation orders to be made in proceedings under either. The order can provide either that the non-member spouse receives an amount calculated in accordance with the Regulations — commonly a specified base amount — or that the non-member spouse receives a specified percentage of each splittable payment. For a percentage-only interest the order operates by reference to a percentage specified in the order — section 90XT(1).
The court may instead make a flagging order under section 90XU, which prevents the trustee from making a splittable payment while the flag operates. Flagging is typically used where a benefit is about to crystallise — for example, where a member is close to retirement — and the value of the interest is expected to become much clearer shortly.
Not every interest can be split. The Regulations define an unsplittable interest (regulation 14 of the Family Law (Superannuation) Regulations 2025), and a splitting order cannot be made in relation to an interest of that kind — section 90XT(1).
Valuing a superannuation interest
Before making a splitting order the court must determine value. Where the Regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the Regulations; otherwise the court determines value by such method as it considers appropriate — section 90XT(2).
The Regulations set out the machinery in detail:
- Part 5 deals with payment splitting or flagging by court order, including determining the value of the member spouse’s interest — regulations 44 to 46;
- Part 6 sets out how to determine the gross value of interests in the growth phase (regulations 51 to 62) and in the payment phase (regulations 64 to 70), including separate rules for accumulation interests, partially vested accumulation interests, defined benefit interests, innovative interests and percentage-only interests;
- regulations 62 and 70 allow methods and factors to be approved for particular interests. Those approvals are made in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 (Cth), which contains scheme-specific methods for named Commonwealth and State public sector schemes.
For an ordinary accumulation account the exercise is usually straightforward — the account balance at the relevant date, adjusted as the Regulations require. For a defined benefit interest it is not, and we deal with that separately in our guide to defined-benefit superannuation in family law.
Base amount or percentage?
Where a base amount is specified, Part 7 of the Regulations governs what the non-member spouse is ultimately entitled to receive. The base amount is adjusted over time — the adjusted base amount — using the adjustment periods and interest rates in regulations 73 to 76, and the entitlement is then worked out under the Division that matches the phase of the interest at the date of service of the agreement or the date of the order (Divisions 2 and 3 of Part 7).
The practical difference matters. A base amount fixes a dollar figure that is then adjusted under the Regulations, so the non-member spouse does not share in later investment performance beyond that adjustment. A percentage split shares the investment experience — up or down — until the split is implemented. Which is preferable depends on the scheme, the phase of the interest, the timing, and what the parties are trying to achieve overall.
Getting information from the trustee
An eligible person — the member, a spouse of the member, a legal personal representative of either, or a person who intends to enter into a superannuation agreement with the member — may apply to the trustee for information about a superannuation interest of a member of the plan — section 90XZB(1), with “eligible person” defined in section 90XZB(8). The application must be accompanied by a declaration in the prescribed form stating that the information is required to help negotiate a superannuation agreement or in connection with the operation of Part VIIIB, together with any fee payable under regulations made for the purposes of section 90XY — section 90XZB(2). The prescribed declaration is Form 6 in Schedule 1 to the Regulations — regulation 102. If the trustee receives an application that complies with the section, the trustee must provide the information in accordance with the Regulations, subject to penalty — section 90XZB(3). What must be provided is set out in Part 9 of the Regulations, with how and when it must be provided dealt with in regulation 140.
The 2026 amendments expanded that disclosure for pensions already in payment. For a defined benefit interest in the payment phase the trustee must now also state whether a lifetime pension is payable due to invalidity, whether the pension has a guarantee period and how much of it remains, whether the scheme rules permit a reversionary beneficiary who is a non-member spouse, and what proportion of the pension would be payable to such a beneficiary — regulation 112(1)(c)(iia), (iva), (v) and (vi). These requirements apply to applications made on or after 23 July 2026 — regulation 149.
Two protections are worth knowing about, particularly where safety is a concern. In response to an application by a spouse, the trustee must not provide the spouse with any address of the member, including a postal address — section 90XZB(5). And where the application is made by someone other than the member, the trustee must not tell the member that the application has been received — section 90XZB(6). Both are backed by penalties.
This is separate from, and in addition to, the general duty of full and frank financial disclosure, which since 10 June 2025 is set out expressly in the Act — section 71B for married couples and section 90RI for de facto couples.
The trustee’s role in the process
The fund trustee is not a party to the marriage or relationship, but it is the entity that has to implement the split. The Act reflects that:
- an order may be expressed to bind the trustee, but the court cannot make such an order unless the trustee has been accorded procedural fairness in relation to the making of the order — section 90XZD(1)(a). Where the trustee is a secondary government trustee, it is another trustee of the plan that must be accorded procedural fairness, and the court may also require it of the secondary government trustee — section 90XZD(1)(b);
- for consent orders, rule 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets a firm timetable. A party intending to apply for a consent order expressed to bind a superannuation trustee must notify the trustee in writing not less than 28 days before lodging the draft consent order or filing the Application for Consent Orders. The notice must set out the terms of the order sought, the next court event (if any), that the parties intend to apply if no objection is received, and that any objection must be given in writing within time. If the trustee does not object within 28 days of receiving the notice, the application may be filed; if the trustee consents in writing sooner, the parties need not wait — rule 10.06(2) to (4);
- documents may be served on the trustee in accordance with the Rules — section 90XZF;
- a trustee is protected from liability for things done or not done in good faith in reliance on a document served for the purposes of the Part, or on an order made in accordance with the Part — section 90XZE;
- trustees may charge reasonable fees in respect of a payment split or the operation of the Part, as provided for by the Regulations — section 90XY and regulation 98.
The point of that machinery is procedural fairness, not approval. The trustee is not being asked to approve the settlement or to agree that the division is fair; it is being given the opportunity to be heard on an order that will bind it — typically because the order as drafted cannot be administered under the scheme rules. In practice the proposed orders should be provided to the trustee in the form it is being asked to implement, and the 28-day period built into the settlement timetable. The Court’s practice direction for family law financial proceedings and its superannuation information for parties set out the Court’s current requirements for financial cases, including superannuation.
A split does not create cash
This is the point most often missed. Where the plan is a regulated superannuation fund or approved deposit fund, the non-member spouse’s entitlement is subject to regulations under the Superannuation Industry (Supervision) Act 1993 (Cth) providing for payment of that entitlement into another superannuation fund, approved deposit fund, retirement savings account or exempt public sector superannuation scheme for that spouse’s benefit — section 90XZ(1). Equivalent provisions apply to retirement savings accounts and to constitutionally protected funds and exempt public sector schemes — sections 90XZ(2) and (3).
In other words, the amount stays inside the superannuation system until the receiving spouse satisfies a condition of release under superannuation law. A superannuation split is a retirement-savings outcome, not a source of funds for a property purchase or for immediate expenses. That is often why parties prefer to trade a smaller share of superannuation for a larger share of non-superannuation assets, or the reverse.
Flags, waivers and later changes
A payment flag can be terminated by the court — section 90XM — or lifted by a flag lifting agreement — section 90XN. A non-member spouse who no longer wishes to receive payments under a split may serve a waiver notice in the prescribed form on the trustee, commonly in exchange for a lump sum transferred for their benefit; the effect is that the member’s payments continue to be reduced but the non-member spouse receives nothing further — section 90XZA. Waivers are covered in regulation 99 and Schedule 1 of the Regulations.
Making a knowingly false or misleading statement in a declaration that is served on a trustee for the purposes of Part VIIIB is an offence punishable by up to 12 months’ imprisonment — section 90XZG.
Time limits
The time limits for property proceedings apply to superannuation too. Married couples must generally institute proceedings within 12 months of a divorce order taking effect — section 44(3). De facto couples must generally institute proceedings within two years of the end of the relationship, unless both parties consent to the application — sections 44(5)(a) and 44(5)(b). Otherwise the court’s leave is required, and leave depends on hardship or (for maintenance) inability to self-support at the end of the standard application period — section 44(6). Leave is not guaranteed.
When to get advice
Advice is particularly worthwhile where:
- either party holds a defined benefit interest, a public sector interest, or a pension already in payment;
- superannuation makes up most of the pool, so the split determines the practical outcome;
- a self-managed superannuation fund is involved, or the fund holds illiquid assets;
- a party is close to retirement, or a benefit is about to become payable, and flagging may be appropriate;
- safety concerns make the handling of an information request important.
Holt & Macdonald advises separating couples across Ringwood and Melbourne’s eastern suburbs on property settlement and superannuation splitting. This guide is general legal information about family law; it is not taxation, actuarial or financial product advice. See our Family Law page for how we work.
