Court order necessary to effect agreement

Categories:
Kiwisaver
Summary:
After separating, Ana and her husband agreed to split their property. Under the agreement, Ana agreed to transfer savings from her KiwiSaver account to her former husband’s account.

Ana’s KiwiSaver provider was a bank. It told her it needed a certified copy of a court order and a copy of the settlement agreement before it could transfer her savings. Ana considered the agreement was as legally binding as a court order, and that the requirement to obtain a court order was thus unnecessary. She complained to us.

Contracts between former spouses or partners are legally binding, but they are not equivalent to court orders. A contract is a voluntary agreement between parties, whereas a court order is a ruling by a judge.

Our investigation

Section 21 of the Property (Relationships) Act 1976 says that agreements between spouses or partners over the division of property become legally binding once signed. The agreement complied with section 21. However, section 31 says such agreements, if they include the division of superannuation scheme entitlements, require a court order to give them full effect.

We told Ana the agreement alone was insufficient to enable the transfer of her KiwiSaver savings.

Outcome

Ana accepted this and sought a court order.

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