KiwiSaver becomes joint asset

I was reading your KiwiSaver column and a sentence caught my attention: "Once the money has gone into your KiwiSaver account it belongs to you, and if you were to turn 65 tomorrow you could apply to withdraw it all". But is it really yours? Or are you merely the temporary owner until part or all of your hard-earned and saved money is claimed by someone else? I was recently speaking with a woman who separated from her husband. She was really upset when her solicitor said she had to give her ex-husband 50 per cent of her KiwiSaver, as the lazy so-and-so hadn't bothered to ever start his own. The 50 per cent KiwiSaver value was knocked off her 50 per cent share of the house sale proceeds. This means she cannot afford to buy another house or get the First Home buyer options available under KiwiSaver.

You have raised an important issue - the impact of a relationship property claim on a person's KiwiSaver savings, or indeed any asset that they own at the time of a relationship breakdown.

I am not qualified to give legal advice, but as far as KiwiSaver is concerned it is an asset and could be included in any division of property.

I referred this question to Emma Dale, senior associate with law firm Chapman Tripp in Auckland. She says "Your reader is correct in that a KiwiSaver account balance is a person's asset (albeit that it is held in trust with rules regarding its use).

Because a KiwiSaver scheme balance forms part of a person's assets, it is therefore available in situations of property relationship settlements just as other investment funds would be.

An ex-spouse can get a Court order requiring a scheme's trustee to pay a portion of a KiwiSaver balance to the ex-spouse.

The KiwiSaver balance is treated as any other asset would be (like the house) and is available for inclusion in a tally of the assets, particularly if the balance was accumulated during the relationship.

There may be an argument as to portion of the balance available to the ex-spouse if some of the balance was accumulated before the relationship began (and was therefore separate property rather than relationship property)."

Many people feel aggrieved by the outcome of a marriage breakdown, and this is as much about the financial impact as the emotional.

People get into relationships for all sorts of reasons and it is not uncommon for partners to have very different attitudes towards money - one person may spend every penny while the other saves for a rainy day.

Sadly for the saver, that money will most likely be split in the event of a separation.

Money is one of the biggest causes of relationship difficulties, and too many people move in together without first discussing their financial circumstances with their partner.

Someone may appear to be well off because they have a good job, but they may have a lot of debts that they have not talked about.

Anyone with money problems in a relationship should seek budget advice or counselling.

The woman you have been speaking to may not qualify for a First Home Withdrawal, but if she is not well off she may still be eligible to make a withdrawal and qualify for a HomeStart grant under the "second chance" KiwiSaver home purchase facility.

Emma Dale explains, "The facility was set up for (amongst other things) people who had been through property relationship settlements and found themselves in a similar financial position as if they had never owned a home."

To find out more go to the Housing New Zealand website or call them on 0508 935 266.

- Shelley Hanna is an authorised financial adviser (FSP12241). Her disclosure statement is available on request, free, by calling (06) 870 3838, or see peak.net.nz. The information contained in this article is of a general nature and is not personalised.
Send your KiwiSaver questions to shelley.hanna@peak.net.nz.