How to access KiwiSaver funds after separation – The Ex-Files
Q: I have recently separated from my partner after being in a de facto relationship for six years. I have about $70,000 in my KiwiSaver and my ex-partner has about $30,000 in their KiwiSaver. We both started KiwiSaver after our de facto relationship started. Do I have to give my ex any of my KiwiSaver, and if so, how do I do that if I cannot afford to pay them out?
What happens to KiwiSaver after a relationship ends?
If you separate after being in a de facto relationship for three or more years, the portion of your KiwiSaver that accumulated during the relationship is considered “relationship property”. There is a presumption that relationship property is divided equally, unless certain exceptions apply. Contributions made before the de facto relationship started will remain your separate property as well as contributions made after separation.
Calculating the relationship portion
If you only started contributing to KiwiSaver after your de facto relationship started, the whole of your KiwiSaver balance at the date of separation will be relationship property. You will need to provide proof of the balance of your KiwiSaver at the date of separation. But there may be situations where it is not fair to value the account at the date of separation and other methods may be used.
If you were contributing to KiwiSaver before the de facto relationship started, the simplest method is to take your KiwiSaver balance at the end of the relationship, subtract the balance from the start of the relationship and the difference is the amount attributable to the relationship. Alternatively, you can calculate the amount attributable to the relationship on a percentage basis.
Common approaches to division
It is common for couples to agree to keep their own KiwiSaver accounts, with one partner making an adjustment payment to ensure an equal division. For example:
- Your KiwiSaver: $70,000
- Ex-partner’s KiwiSaver: $30,000
- Difference: $40,000
- Adjustment needed: $20,000 (to equalise the division)
If you cannot afford to pay your ex-partner
It is common for people to come to an agreement where a cash adjustment is made to equalise the division of relationship property, including KiwiSaver.
If you cannot afford to make a cash payment to your ex-partner, you can apply to the Family Court to withdraw money directly from your KiwiSaver.
You can also ask the Family Court to transfer the payment directly from your KiwiSaver to your ex-partner’s KiwiSaver.
The application process
This requires the following:
- Entering into a legally binding Relationship Property Agreement with your ex-partner (there are formal requirements under the law that must be met to make it a legally binding agreement). This confirms that your ex-partner will be receiving their appropriate share of the KiwiSaver.
- An application to the Family Court for orders regarding superannuation rights. This asks the Family Court to direct the KiwiSaver provider to pay out the required funds. This is usually paid into your lawyer’s trust account, pending settlement of relationship property matters.
- Completing an affidavit in support, which attaches a copy of the signed Relationship Property Agreement. The affidavit will need to be sworn or affirmed in front of a lawyer, Justice of the Peace or court registrar.
- Both parties sign a memorandum of consent confirming they agree to the orders being made.
- Submitting these documents to the Family Court.
- Paying the $770 filing fee (unless relationship property proceedings have already been filed).
A Family Court judge will review the documents and determine whether it is appropriate to make an order.
What to do once the order is made
You or your lawyer will now need to give the order to your KiwiSaver provider. Each provider has different requirements in terms of what supporting information they require, and it is therefore important to check this with your specific provider.
Timeframes
The time it takes for a judge to consider the application will vary depending on the court and the current caseload of that court. As a guide, it could take one to three months. The judge will make the order without you needing to appear in court.
How long it takes for your provider to pay out the funds, or transfer the funds to your ex-partner’s KiwiSaver, also varies between providers.
Jeremy Sutton’s advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it. He does not consider your individual situation. Before you make legal decisions, should always get independent advice from a specialist lawyer.