Investment funds held under a Kiwisaver Scheme (Kiwisaver) are generally subject to equal division when parties to a relationship separate.

This article canvasses when your KiwiSaver becomes relationship property, what portion of it is relationship property, how to divide your KiwiSaver when it can only be accessed in limited circumstances, and how to protect your KiwiSaver from becoming relationship property.

When will your KiwiSaver become relationship property?

If you are in a qualifying relationship, your KiwiSaver forms part of the relationship property pool and is subject to the presumption of equal sharing.

However, only the increase in value of your KiwiSaver from the start of the relationship to the date of separation counts as relationship property. Any KiwiSaver accrued prior to the commencement of the relationship is essentially “ring fenced” and will remain your separate property (unless you withdraw those funds and apply them to relationship property such as the family home).

What if your KiwiSaver position is not equal to your partner’s?

It is rare (but not unheard of) for parties to leave the relationship with equal KiwiSaver balances. This could be due to a range of factors including: the balances at the start of the relationship; disparity of incomes and contributions during the relationship; one party taking time out of paid employment to care for children; unemployment; illness; and/or early withdrawals. Alternatively, it could be that one party has opted into KiwiSaver, whilst the other party has no KiwiSaver or superannuation policy at all.

The effect of this disparity upon separation means that one party will usually need to compensate the other party to equalise their positions. This compensation should be recorded with the help of lawyers in a properly prepared and executed separation agreement pursuant to s21A of the Property (Relationships) Act 1976.

What forms of compensation are appropriate?

There are obvious impracticalities to dividing your KiwiSaver between you and your partner given the strict limitations around when you are entitled to access those funds. For this reason, often the parties will retain their own individual KiwiSaver in its entirety, and simply make a cash transfer or a transfer of other property (either relationship or separate) to equalise the parties’ positions.

If there is limited cash or relationship property available upon separation, or an unwillingness to dip into those resources to give effect to the equalisation, another option is for the parties to apply to the Family Court for an order that the funds be released from KiwiSaver to enable them to meet their obligations under the s21A agreement. An application of this kind is best made with the consent of both parties after the s21A agreement has been properly drafted and executed with the assistance of independent lawyers. However, success is not guaranteed.

How can you protect your KiwiSaver?

If you do not want your KiwiSaver to form part of your relationship property upon separation, your safest course is to enter into a contracting out agreement (i.e. a “pre-nup”) with your partner. This is best completed at the start of your relationship and prior to it becoming a qualifying relationship under the Act. A contracting out agreement can set out how the parties want their contributions to KiwiSaver (or superannuation fund) classified during the relationship, and divided upon separation.

Need help?

If you want to safeguard your KiwiSaver contributions during a relationship, or if you have separated and are looking to explore your options in terms of dividing your relationship property and/or equalising your positions – contact our Family Law team by filling out the form below or contact Natalie Miller on 09 837 6843   or at natalie.miller@smithpartners.co.nz  today!