A recent survey conducted by Westpac, of their members, found that just 25 per cent knew that the funds in KiwiSaver could be split between a separating or divorcing couple.
The law in New Zealand (as set out in the Property (Relationships) Act 1976) in relation to KiwiSaver, and most other superannuation schemes, classifies the proportion of the value of any superannuation scheme entitlements attributable to the marriage, civil union or de facto relationship as relationship property. Relationship property is generally divided equally between parties on separation. This means that the increase in value of your KiwiSaver account from the time your relationship started will likely be considered to be relationship property in which your partner is entitled to an equal share. This is the case irrespective of whether the funds came from individual, government or employer contributions.
Bear in mind, however, that just because your partner may be entitled to a half share of your KiwiSaver funds, it does not necessarily mean that you will be forced to withdraw your KiwiSaver funds early. Instead, many separating couples reach an agreement to take into account the half share owed to their partner by an adjustment of other relationship property such as the family home, vehicles or savings. This is usually the most straightforward way of dividing the pool of relationship property. If there is insufficient relationship property to make such an adjustment, then it may be necessary to seek an early withdrawal of funds from KiwiSaver. In the event that this is necessary it is likely that your KiwiSaver provider will require an Order from the court to allow for this, pursuant to section 31 of the Property (Relationships) Act 1976. This Order would then be served on the manager of the KiwiSaver or superannuation scheme who will be required to release the necessary funds.
It is possible to contract out of the provisions of the Property (Relationships) 1976 and in particular the sections providing for KiwiSaver and superannuation schemes as relationship property. This would require you and your partner to enter into an agreement, pursuant to the requirements under the Act.
If you would like any further advice or information, or would like some information about contracting out of the Act then please contact our Relationships Team.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.