“My ex needs these payments – what do you mean they aren’t necessary?”

Lucas was living in Australia with his partner of more than 20 years. In January 2018, Lucas and his partner separated. Lucas’s partner agreed to move out of their shared home, and in exchange, Lucas agreed to pay his former partner’s rent, roughly $500 per week.

Shortly after the separation, Lucas was made redundant. In March 2018, he secured a new job in New Zealand, but could not afford to move to New Zealand.

Lucas made an application to withdraw funds from his KiwiSaver, on grounds of significant financial hardship. He applied for funds to cover his moving expenses, reduce his credit card debt, and cover some of his initial living costs in New Zealand. Lucas claimed that even with the income from his new job, he would not be able to cover his weekly expenses.

The trustee managing Lucas’s KiwiSaver account assessed the application, and accepted part of Lucas’s claim. The trustee agreed to release funds to pay for his relocation to New Zealand, but declined to release funds to cover Lucas’s living expenses or to reduce his credit card debt. The trustee calculated a budget for Lucas, but did not include Lucas’s $500 weekly payments to his former partner on the grounds that with no separation agreement or court order in place, there was no legal obligation for Lucas to make the payments.

Lucas complained about the handling of the decision, and requested the trustee reassess the application. The trustee considered Lucas’s complaint and responded promptly that the assessment of Lucas’s budget had been accurate and reasonable, and it would not release any further funds.

 

Dispute

Lucas was unhappy with the trustee’s decision, and complained to FSCL.

Lucas felt the trustee’s assessment of his budget hadn’t taken into account his situation as a whole. Lucas said his weekly payments to his partner should be included in his budget, as he could not morally stop or reduce the payments. If the payments stopped, Lucas’s former partner could go bankrupt and lose his business.

Once the weekly payments were included in his budget, Lucas said he could not meet the minimum payments on his credit card, or afford living expenses. He felt the payments would have been included by the trustee if his relationship were heterosexual. He considered there was bias against his sexual orientation, and the trustee’s decision was a breach of his human rights.

Lucas also said that the trustee had not assessed his claim for moving expenses properly, and the funds released weren’t enough to cover his costs.

The trustee stood by the original decision, saying Lucas’s payments to his former partner were too uncertain to be included in his budget. The trustee did not feel the payments could be treated as necessary living expenses, and that the decision would have been the same if Lucas’s relationship was heterosexual.

 

Review

FSCL agreed with the trustee. The requirements for KiwiSaver withdrawals are very strict, and the trustee could only include necessary living expenses in its assessment. While we acknowledged that Lucas felt a moral obligation to make the weekly payments to his partner, there was no legal obligation.

We did not consider there was any evidence of bias from the trustee. We accepted the trustee’s decision would have been the same if Lucas’s relationship had been heterosexual.

We did find that the trustee had made an error when assessing Lucas’s application for moving expenses. The trustee hadn’t accounted for Lucas’s insurance costs properly, and we agreed the funds the trustee had released did not cover Lucas’s full moving expenses.

 

Resolution

We issued a decision recommending the trustee reassess Lucas’s application for moving expenses. However, we upheld the trustee’s decision regarding Lucas’s credit card debt and living expenses.

We noted that Lucas could apply for a release of funds for legal expenses to formalise his separation with his former partner. After a written separation agreement was in place, Lucas could make a new application to withdraw funds, and the trustee may be able to take Lucas’s weekly payments to his ex-partner into account.

Lucas and the trustee both accepted our decision, and Lucas decided to see a lawyer about formalising his separation.

 

Insight for consumers

Applications to withdraw KiwiSaver funds can be a useful tool if you find yourself in some unexpected financial difficulty. However, the requirements for withdrawals are strict. Trustees will usually only take the minimum necessary payments and living expenses into account. When making an application for withdrawal on the grounds of significant financial hardship, you should be prepared for the trustee examining your financial situation and your day-to-day expenses very closely.