Those of us working in the superannuation industry were quite distracted at the beginning of the year with the implementation of FAR and CPS 230, such that it was easy to miss all the family law reforms which were introduced at the time. The Family Law Amendment Act 2024 (Cth) first kicked off the reforms in December 2024. This was followed by the repeal of the Family Law (Superannuation) Regulations 2001 (Cth) (2001 Regulations) with the completely re-written Family Law (Superannuation) Regulations 2025 (Cth) (2025 Regulations) taking their place in April 2025.

The 2001 Regulations have not been entirely replicated in the 2025 Regulations. The differences are not necessarily drastic when considered as standalone amendments. Rather, numerous clarifying tweaks have been made to the existing rules, and the provisions have been rearranged and modernised.

The following changes are some of the key amendments:

  • Regulation 72 notices (notices give to trustees by a non-member spouse) should now be referred to as regulation 144 notices. Additional information is required to be provided to the trustee as part of these notices.
  • Separation declarations (which are required for financial agreements) are to take the same form, irrespective of whether a member’s superannuation balance meets the low rate tax threshold.
  • More superannuation interests are now considered to be ‘unsplittable’ and therefore excluded from the superannuation splitting rules.
  • New rates have been determined for adjusting defined benefit interests between the operative time and the payment date.
  • The regulations now prescribe the valuation process, and types of information to be provided to parties, in circumstances where innovative superannuation products are being split.

Trustees should ensure that they have implemented these changes to all superannuation split requests made after 1 April 2025.

I was confined by the word count for the article so the content focuses only on the key ‘need to know’ changes. There is an overwhelming number of other changes but they are largely technical in nature. The Explanatory Statement to the 2025 Regulations contains a “Comparison table of provisions” which compares the 2001 Regulations and the 2025 Regulations if you would like further information.

The relationship between superannuation and family law

Superannuation tends to be one of the largest assets that a member holds, so if they get divorced, it is usual to look to superannuation to assist with the fair distribution of assets between the separating partners. The Australian Institute of Family Studies tracks how the number of divorces in Australia changes over time. Its research has found that the median age for divorcees is increasing as people marry later in life and therefore get divorced later in life.

This of course has an impact on superannuation as account balances tend to be larger if members have been in the workforce for longer. It also means that more pension products may be subject to superannuation splits than we have previously seen. Accordingly, many of the changes introduced to the Family Law Act 1975 (Cth) and as part of the 2025 Regulations are to ensure that the law remains current – reflecting the current economic and social landscape and the developments to superannuation products which have occurred since the 2001 Regulations were made.

Changes to the Family Law Act

The Family Law Amendment Act 2024 (Cth) introduced a couple of superannuation-related amendments which were effective from 11 December 2024. The amending Act’s main purpose was focused on providing the Federal Circuit and Family Court of Australia with broader powers and ensuring that instances of family violence or abuse are considered in property settlements. The amendments specific to superannuation seem to have flown under the radar. In fact, background information relating to the superannuation changes is contained in a supplementary Explanatory Memorandum to the Family Law Amendment Bill 2024 (Cth), rather than the main Explanatory Memorandum.

The superannuation-related changes to the Family Law Act 1975 (Cth) include the following:

  • The amending Act creates a mechanism for the Attorney-General to issue a direction to a trustee to ensure that it is using approved methods and factors to produce accurate and reasonable valuations of superannuation interests. The Courts want to ensure they have access to appropriate valuations of superannuation interests.
  • Each party in a family law proceeding must give all relevant information and documents to the family law courts and each other party in a timely manner – this extends to third parties such as superannuation trustees that may be joined to proceedings.

Changes were also made to the separation declaration requirements. Separation declarations are required to be provided to superannuation trustees if the parties want to split superannuation interests pursuant to a financial agreement rather than a Court order. Previously, sections 90XP and 90XQ of the Family Law Act 1975 (Cth) required a separation declaration to include certain statements if the total value of a member’s superannuation interests was more than the low rate cap amount in the tax legislation. The cap amount is $260,000 for the 2025/26 financial year. As a result of the changes, separation declarations now have the same content requirements, irrespective of the value of a member’s interests. This change has simplified the content of separation declarations.

Changes introduced by the 2025 Regulations

The 2025 Regulations prescribe various rules for the purposes of the superannuation-splitting provisions in Parts VIIIB and VIIIC in the Family Law Act 1975 (Cth). The differences compared with the 2001 Regulations are described by the Government as being largely “technical”. However, on close inspection there are various details that have been introduced which superannuation trustees should familiarise themselves with.

Notices from non-member spouses

A non-member spouse must provide certain information and instructions to a trustee to enable payment of their entitlement under the relevant Court order or financial agreement. In most cases the super fund will provide the non-member spouse with a standard form to provide this information. These were previously known as regulation 72 notices. The 2025 Regulations have renumbered these notices to be regulation 144 notices, and additional information is required to be provided by the non-member spouse to the trustee.

In addition to the information prescribed by regulation 72 previously, a regulation 144 notice must also ask the non-member spouse whether they are represented by a legal representative, support worker or other person or organisation. If they are, the full name and postal address (or alternatively, the email address) of that representative must be provided to the trustee.

Unsplittable interests

Regulation 14 in the 2025 Regulations has expanded the list of superannuation interests which cannot be split as part of a Court order or financial agreement, known as ‘unsplittable interests’. If a superannuation interest is a certain type of pension or annuity with an annual benefit payment of less than $4,000 it cannot be split between the member and non-member spouse. All other superannuation interests cannot be split if the withdrawal benefit is less than $10,000.

These figures were previously $2,000 and $5,000 respectively in the 2001 Regulations. The amounts have been increased to reflect changes in inflation and living costs between 2001 and 2025. The Explanatory Statement to the 2025 Regulations explains that ‘splitting superannuation of minimal value is not cost effective for the parties and the administrative burden on superannuation trustees to implement splitting for such interests is not justifiable’.

Defined benefit rates

If a defined benefit interest was required to be split, regulation 45D in the 2001 Regulations required trustees to adjust the interest between the operative time and the payment date by having regard to the rate prescribed by the Australian Government Actuary. The most recently prescribed rate was in the Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2024 (Cth). The relevant regulation for these adjustments is now regulation 76 in the 2025 Regulations which is not drafted on entirely identical terms to former regulation 45D. A new rate has also been prescribed by the Australian Government Actuary for the 2025/26 year as part of the Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2025 (Cth).

Innovative superannuation interests

The regulations now prescribe the types of information to be provided to the parties where innovative superannuation interests are being split. In addition, valuation methods are prescribed for innovative superannuation interests which take the form of a pension or an annuity. These changes are required as the concept of innovative superannuation interests did not exist in superannuation law when the 2001 Regulations were made.

Other amendments

Superannuation trustees may wish to consider other technical amendments to the 2025 Regulations such as:

  • The introduction of a specific definition for what a component of a superannuation interest means which is relevant to determining valuations of, and providing information about, superannuation interests.
  • The introduction of a valuation method for calculating the gross value of a superannuation interest in the payment phase, the benefits in respect of which are payable as a lifetime pension because of invalidity.

Despite all these technical changes, there is welcome news. The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 (Cth) effectively replicates the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth). So at least some things remain familiar!

This article first appeared in the September 2025 edition of the Australian Superannuation Law Bulletin (Vol 35, No 9) published by LexisNexis.