Could you explain to me what portion of my KiwiSaver is regarded as relationship asset? I can't seem to find a clear answer from anyone about this. I entered the scheme in 2009 after the relationship began and the relationship ended in July 2015.
In a situation like this it is always advisable to talk to an expert rather than rely on the opinion of people who may not be qualified to give advice.
I asked lawyer Emma Dale, senior associate with Chapman Tripp in Auckland, to comment.
She replied: "A KiwiSaver scheme balance is no different to any other asset (such as a house or bank account balance) to be considered in a relationship property settlement.
My understanding is that it is the whole balance that will be considered (including government contributions and any employer contributions, along with the member's own contributions).
"However, it is up to a court to decide what part of the balance should be paid to the ex-spouse to form part of the settlement. The court may decide that only the member's own contributions can be withdrawn and paid to the ex-spouse as part of the relationship property settlement. Whatever is specified in the court order will be what can be paid out. But in terms of working out the settlement, my understanding is that it is the whole balance that is considered to be the asset."
Recovering from a relationship breakdown is challenging, both emotionally and financially. Perhaps understandably, many people enter into a relationship without thinking about the consequences should it fail.
The Property (Relationships) Act applies to couples who have been in a de facto relationship for at least three years, or less than three years if they have a child. It also covers married couples and couples in a civil union.
The Act is based on the principle that both individuals in a relationship are equal, that both financial and non-financial contributions to the relationship should be treated equally, and that the division of property should take into account any economic advantages or disadvantages that one party may have as a result of the relationship.
Many couples come to an agreement between themselves as to how they will divide their property.
If a couple applies to the Family Court because they cannot agree on the division of joint property after separation, the court will generally determine that the relationship property be divided evenly between both parties.
The act presumes that each partner contributed equally to the relationship, even though that may be in different ways, and aims to provide a just division (almost always equal) of the relationship property when the relationship ends.
The only way to prevent the act from applying is for a couple to enter into a contracting-out agreement.
This allows them to make their own rules about the ownership of your property (including future property) and how it is to be divided if the relationship ends.
You would be wise to get legal advice on your situation.
If your budget is limited, you can start by talking to someone at your nearest Community Law Office.
- Shelley Hanna is an Authorised Financial Adviser FSP12241. Her free disclosure statement is available on request by calling 06 870 3838 or go to www.peak.net.nz. The information in this article is general and is not personalised. Send your KiwiSaver questions to shelley.hanna@peak.net.nz.