Is your Kiwisaver/superannuation fund relationship property?

Relationship property is the term given to the property that will be divided, generally 50:50, when you separate. The law governing this subject is found in the Property (Relationships) Act 1976.

Section 8(1)(i) of Property (Relationships) Act 1976 includes as relationship property the proportion of any superannuation scheme entitlement that is attributable to the marriage, civil union, or de facto relationship.

What this means is that the funds in your Kiwisaver or other superannuation scheme, which you have acquired since your relationship started will be divided between you and your ex spouse or partner.

This is regardless of whether the contributions have been made by you, your employer or the government.

You will be able to keep as your separate property any proportion of your Kiwisaver or superannuation fund which was acquired prior to your relationship.

Can I withdraw money from my Kiwisaver/superannuation?

Subject to a number of exceptions, a Kiwisaver member’s funds are locked in until they reach the qualifying age (currently set at 65).

Circumstances when funds can be withdrawn include, to purchase a first home, death, and significant financial hardship or serious illness.

A further instance when funds can be withdrawn is where the Court makes an order to release funds under section 31 of the Property (Relationships) Act 1976.

Such an Order may be served on the manager of the Kiwisaver or superannuation scheme who will be bound by the order and obligated to release the funds.

Can we divide our Kiwisaver/superannuation by agreement?

Pursuant to section 21A of the Property (Relationships) Act 1976 you are able to reach an agreement on how to divide your property without going to Court.

There are a number of formal requirements for entering into such an agreement and you will each need to go see an independent lawyer to seek advice.

You may include your Kiwisaver or superannuation in an agreement and if an adjustment is required you can agree to make payments for that adjustment out of funds other than those in your Kiwisaver or superannuation funds, or by forgoing other items of relationship property.

If you have insufficient funds to make an adjustment payment, you may need to apply for a Consent Order under section 31 of the Property (Relationships) Act 1976 so that the Court can direct your Kiwisaver or superannuation manager to release funds.