Separation vs Divorce: What You Should Know

Separation and divorce are difficult topics to talk about and difficult experiences to go through. The difficulty can be a barrier to finding out enough information to make a clear decision and go through the process in the best way for you. One blurred line is the difference between separation and divorce, which isn’t always obvious at first glance. Below you’ll find some of the key information to help you understand the distinction a bit better:

What are the main differences between separation and divorce?

Separation comes before divorce – a couple must agree to separate before they can get a divorce. Once a couple has been separated for at least two years, they can then choose to apply for a divorce.

Separation doesn’t have to be legally formalised a couple can technically separate just by agreeing to separate. While a formalised separation (usually via a separation agreement) can make the process easier for everyone, it’s not a requirement for separation. Meanwhile, a divorce requires a formal declaration from the Family Court, officially called a Dissolution Order.

Divorced couples are no longer married – a couple that separated while married is still considered legally married, even if it has written up a separation agreement or received a court order. A divorced couple is no longer married once the divorce is finalised, and a divorce cannot be reversed.

Non-married couples can separate – formalised separations are still possible – and common – for couples who didn’t marry. A separation agreement is often the best option for formalising the end of a de facto relationship (generally defined as non-married/non-civil union couples that have lived together for at least three years). Divorce is only applicable to marriages and civil unions.

Separation gives you time to reconsider & decide on relationship property – separation gives time to reconsider things, as well as making decisions on dividing relationship property. It is not advisable to apply for a divorce if you’ve not resolved your relationship property division. Upon divorce, a couple generally has just 12 months to agree on their own division of relationship property, otherwise the default equal sharing principle will apply.

Download our free guide to Separation Agreements

How does separation work?

A couple is generally considered to be “separated” when it’s no longer living together as a couple, and either or both people intend to be separated. Separation can even apply where the couple is still under the same roof, and intends to be in a separation. Any couple can enter a separation without any official action or legal requirement, but there are options to formalise it.

Separation can be formalised if the couple chooses, through either of two methods:

  • A separation agreement
  • A separation order from the Family Court

A separation agreement is used in almost all cases for formalising a separation, as well as preparing for a divorce, and you can find more information about Separation Agreements here. Separation orders are uncommon, and only where one of the couple doesn’t want to separate. You can apply for a separation order from the Family Court.

How are finances and property treated?

Initially, during a separation, the financial obligations of the couple are considered to be the same as they were before the relationship ended. Any changes (such as to repayments of debts and outgoings) will have to be agreed between the parties. The best way to do this might be with a separation agreement. Without an agreement, the law will split all relationship property between the couple 50-50 by default.

As for the divorce process, a separation agreement usually makes things easier by clearly stating the date of separation, and showing that there has been agreement on the division of relationship property. A couple can still get divorced without an agreement, but will have to make an agreement within 12 months of the divorce if they want to make their own decisions as to how relationship property is divided.

What about our children?

If you and your partner separate, you will need to agree on who has “day-to-day care” of the children and other important decisions. This can be done informally, but we recommend writing up a parenting plan, to clarify and set out the arrangement for looking after the children. There is also a free & popular course called Parenting Through Separation that offers practical advice on this. For a divorce to be finalised, the court will have to be satisfied with the arrangements for day-to-day care and the welfare of the children. Even after a divorce, both parents maintain guardianship of any children born or adopted in the course of the relationship. Guardianship is a legal right to help with decisions around the child’s wellbeing and upbringing.

Why should we formalise things?

If you do not formalise your arrangement either through a separation agreement or a divorce, it can create significant uncertainty for the future. Without an express separation agreement or a finalised divorce, any property claims or disputes between partners could result in a much greater financial loss down the track, and just creates more stress in the process. Getting a separation agreement and the requisite legal advice and certification will give you peace of mind and let you move on with clarity.

Download our free guide to Separation Agreements

How to get a divorce in NZ

To get a divorce in New Zealand, you would need a Dissolution Order through the Family Court. The only requirement to apply is that you have been separated (i.e living apart) for at least two years, and that one of the parties is considered “domiciled” in New Zealand, which effectively means that they either live in NZ indefinitely, or were born here and are living overseas temporarily.

Both or one of the parties can make the application to the Family Court. The process is relatively straightforward, and there is further public information available on the Ministry of Justice website.

There is also an excellent guide to divorce in New Zealand on MoneyHub, check it out here.

How can Agreeable help?

Separating is already a difficult process and we know the thought of involving lawyers only adds more stress. You can start wondering: where do we even start? Lawyers are expensive and charge by the hour, how much will it cost? How long will it take? Agreeable was founded to get you a strong agreement and legal advice with as little stress as possible.

  • For $450 you can purchase a separation agreement (click here). The software will lead you step-by-step through creating your own agreement. At the end of a short questionnaire, you’ll be emailed your draft agreement as a Word document.
  • Once completed, our team will work with you make sure the agreement is in the best shape possible.
  • Then, apply for certification with us, and we will arrange two independent lawyers (one for each of you) to certify your agreement (make it legally binding). Best of all, we’ll give you a fixed quote so you know the cost before you commit.

Check out our other articles:

The Property (Relationships) Act: A Handy Guide for Kiwis in 2023

A Guide to Buyouts: How to Buy Out the Mortgage from Your Partner

Five Helpful Tips to Save Time & Money on Certification


What is a De Facto Relationship in NZ?

What is a de facto relationship?

In New Zealand, a de facto relationship is defined as a relationship between two people who are over 18, living together, and are not already married or in a civil union with one another. Knowing whether you’re in a de facto relationship or not is important under the Property (Relationships) Act 1976, as both partners are entitled to half of the Family Home and other relationship property if they have been in a de facto relationship for over three years.

For some people, it will be obvious that they are in a de facto relationship. For others, however, there can be confusion as to whether they are in a de facto relationship (or about to become one), particularly on the “living together” point. If “living together” needs to be determined by the Court, the following factors can be considered:

  • the duration of the relationship:
  • the nature and extent of common residence:
  • whether or not a sexual relationship exists:
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
  • the ownership, use, and acquisition of property:
  • the degree of mutual commitment to a shared life:
  • the care and support of children:
  • the performance of household duties:
  • the reputation and public aspects of the relationship.

A de facto relationship only has to be officially defined if it gets to Court, and the Court is entitled to use all or just some of the factors listed above, whichever are deemed appropriate in the Court’s view. The Court has found de facto relationships in all sorts of cases, such as between people who do not usually live under the same roof, or even between people who were divorced overseas but still live under the same roof. It is a complicated exercise!

de facto relationship nz

Are we in a de facto relationship?

If you are deciding whether your relationship is de facto, read the factors listed above. If you meet even just several of those factors you may be best to treat the relationship as de facto, for example if you are considering whether or not you need a prenup. If you are quite sure that your relationship is not yet de facto, you may be best to consult a lawyer to get reassurance on this. If you would like some specific information initially, feel free to contact the Agreeable team and we will get you on the right track.

Why are de facto relationships important?

Once a couple has been in a de facto relationship for three or more years, each partner would become immediately entitled to an equal share of the relationship property upon separation or death. This means that, if either person does have assets that they would like to remain theirs if the relationship ends, such as their house, their Kiwisaver, or their business, then that person would need to get a Relationship Property Agreement (also known as an “RPA”, “prenup” or “contracting out agreement”).

Considering a prenup/contracting out agreement? Save over $1,000 and weeks of time with Agreeable. Click here to find out more.

An RPA allows each of you to set out which assets would be yours in the event of separation or death, removing the possibility of a trip to Family Court for one partner to claim their share. If you speak to anyone that has gone to court for a relationship property case, they will tell you that an RPA, while not the most romantic thing to discuss, could save you significant amounts of time, money, and stress down the track.

What if we’ve kept our finances completely separate?

Your relationship can potentially be defined as de facto even if you’ve kept your finances completely separate. In the case of Watene v Lord [2017], the Court found that keeping bank accounts and finances separate was not necessarily an indicator of the nature of the relationship. Some of the other factors mentioned above may outweigh the fact that the finances were separate, and this can lead to a finding of a de facto relationship.

Get our free guide to Relationship Property Agreements

What if we’ve been on-again and off-again?

The dates when de facto relationships start, pause, restart, and stop can be fluid and difficult to pinpoint. The general rules/law that the Court applies are not black and white. While a couple that has had breaks must generally be in a continuous relationship for three years to be seen as de facto, some stop-start relationships have still been found as continuous, even if one partner doesn’t believe that to be the case. Clearly agreeing on the date that you started being a de facto relationship can save you time & money in the long run.

What else should we know?

  • Relationships under three years: if there is a dependent child in the relationship, regardless of whether both partners are biological parents, the Court may find that a relationship of under three years still requires an order of asset division between the parties. Furthermore, if one party made a substantial contribution to a relationship of under three years, the Court may find that failure to make an order of asset division would be seriously unjust. The share of assets would be based on each partner’s contributions to the relationship.
  • If we know we’re not de facto (yet): the Supreme Court in Sutton v Bell has recently found that one partner putting a property in a trust before becoming de facto can still lead to that property being claimed by the other partner upon separation. The fact that there was a clear and present intention to progress to a de facto relationship was relevant to the Court in allowing a claim. At the very least, the parties should have contracted out with a relationship property agreement, even before becoming de facto, to avoid going to court.

Check out our other articles:

What is a Contracting Out Agreement? 10 Things to Know

A Guide to the Property (Relationships) Act 1976

How to Buy Out Your Partner from the Mortgage

What is a “buy out”?

A mortgage buy out is one solution if you and your partner separate but still have mortgage obligations and one partner wants to keep the house. A buy out involves one partner purchasing the equity interest of the other. It can be done relatively easily in New Zealand with a separation agreement.

Read on to find out everything you need to know about mortgage buy outs. If you still have a question, feel free to get in touch with Agreeable’s team and we will be happy to help!

Need a Separation Agreement? Click here to learn more about Agreeable’s online service.


Steps to buying your partner out

To buy someone out of a house, you need to be able to take on the whole mortgage yourself, and have enough to pay your partner for their share of the equity in the property. Here are some steps that we recommend taking:

  1. You’ve already made a great start by reading this article. For more general information on separation, we also recommend MoneyHub NZ’s guide here.
  2. Get a valuation on the family home or properties to be divided. You can simply agree on the value and use this as the basis of your agreement, but a valuation is best if there is any doubt, or just to be sure.
  3. Agree on your partner’s “buy out price”. Typically, this is the equity that you hold in the home (home value less the mortgage balance) divided by two. However, some Kiwis like to adjust this figure based on the parties’ contributions to the deposit or mortgage payments. There isn’t necessarily a right answer, as long as it is fair and you both agree.
  4. Get a separation agreement built & certified with Agreeable. Most banks require a separation agreement to change the mortgage over. Agreeable is New Zealand’s fastest, easiest, and most cost-effective way to build an agreement, and we also connect you to two lawyers (one each) for the online advice & certification. We provide it all at a fixed cost, and online, so you don’t have to leave home! Kiwis usually save over $1,000 by certifying with Agreeable, compared to the “traditional” way.
  5. Settle your new mortgage (if necessary).


Download our free guide to Separation Agreements

The first question to ask:

The first question you should ask yourself is if you are financially in a position to afford the mortgage payments. Secondly, will the bank agree to you being the sole mortgagee?

Note that when you separate, you are (usually) splitting half the proceeds from whatever you both sell – including the Family Home. You are left with half (or thereabouts) and must start a new life on this amount. Think carefully before committing to selling the Family Home. It may be a better financial decision to buy out your partner – or not depending on your own financial situation.

Is your partner buying out your share?

If your spouse wants to keep the home, make sure you obtain an appraisal if you cannot agree on the value of the Family Home. Also, you may have to adjust to the fact that it is no longer your home and this may mean unfamiliar people living in it.

Your obligations to the bank

If you are the party being released from your mortgagee obligations, ask for the bank’s proof that they have discharged you from your obligations i.e. check you are no longer on the mortgage.

This may need to be done after you have obtained a Separation Agreement, as some banks request to see this for obvious reasons before they take one partner’s name off the mortgage.

What are your other options if you cannot afford the mortgage yourself?

If your mortgage payments are almost paid off and you and your partner are on amicable terms, then you could agree to continue to pay the mortgage until it ends.

This is ideal and possibly not the option many can take. In this situation, it may still be untenable for your partner to stay living in the house while you both pay off the mortgage. In this case, the partner who is having their share bought out, will have to negotiate rent.

Can the buyer withdraw their KiwiSaver to help?

It is possible, but it depends on your KiwiSaver provider and your circumstances. In general, the person withdrawing must be eligible under the provider’s policies, and the provider will often require a “court order” to release the funds, which can take a few weeks to process. The best first step, if you are likely to withdraw one partner’s KiwiSaver for a separation agreement, is for that person to get in touch with their provider and ask for their requirements to approve a withdrawal. This will make your separation agreement certification much smoother, as the lawyers will have a clearer idea on your ability to withdraw.

Also, there is likely to be an extra cost for KiwiSaver withdrawal, often $1,500-2,000, consisting of a $700 court filing fee and a lawyer’s help with the forms involved. The paperwork can be complex without a lawyer, and often the provider requires you to have one anyway. If you are certifying a separation agreement through Agreeable, the lawyer that we arrange for the withdrawing partner can usually help with the KiwiSaver withdrawal, but the extra cost won’t be included in Agreeable’s quote. We can get a cost indication for you at the same time as presenting our quote for certification.

Can you substitute someone else on the mortgage?

It will be hard to sell the Family Home with negative equity. Unless you are able to negotiate other terms with your mortgage provider then you will both continue to be liable for the mortgage repayments. Potentially you could substitute your spouse for other family members or friends who are interested or able to support you in the mortgage if you decide to keep the house. If you decide to go with this option, it is a good idea first to have already brought-out your spouse.

Buy Out Divorce Separation 
The Family Home is relationship property, and after separating, you may be thinking about buying out your partner’s share to keep it.

What will the buy out price be?

A buy out means you must identify the equity in the property – the difference between the mortgage balance and what the property is currently

It’s not always going to be an equal split when you separate from your partner – you can decide what the most fair buy out price is, as long as you both agree. This may be the case if one partner’s family helped to improve the value of your home by providing money for renovations, or perhaps one of you contributed more to the deposit of the home.

How do you calculate the buy out price?

But assuming that you both contributed equally to both the deposit on the home, and the recurring mortgage payments, this will be a simple calculation.

To clarify, you take the current value of the property (note that you may both want to get property valuers to obtain an accurate market value of the property), subtract the amount outstanding on the mortgage, and any other payments which were not contributions equally by you both, and then divide the remaining amount by two.

Example of buy out calculations

So, for example, if the property is now worth $500,000 and there is, say, $250,000 left to pay on the mortgage, you would need to find $125,000 to buy out your ex-partner’s share of the property.

If, for example, the property is worth $500,000 but $100,000 was provided as a loan by your parents to renovate the house or for the deposit, you will need to pay this back first. Say you have no mortgage on the house and you were to divide the sale of proceeds. This means you and your partner will be splitting $400,000 instead of $500,000.

However, if you were to buy out your partner’s share, and there is still $250,000 left to pay on the mortgage, you will need to pay out the $100,000 first. Assuming the loan was a gift from your parents, this means that you will need $75,000 to buy out your partner.

How to get a valuation on your Family Home or other properties

The buy out price above depends on the value of the home if you are keeping the Family Home. Note that your bank may also want you to get a valuation from a registered property valuer before they refinance the mortgage to you.


It is important to get a valuation from a certified registered valuer.  This will determine the market worth of a house or property.

A registered property valuer combines all their knowledge and experience with their observations and research undertaken of the property and its surrounding area, and determines the market value.

A property valuation costs approximately $500 – $800 plus GST. However, a valuation does have a limitation period. This means it will remain “current” only for a limited time, typically three-to-six months. Your ex-partner may agree to split the cost of the valuation.

Certificate of Title

Firstly, it is important to get a copy of the Certificate of Title of your property to check whether your name is on it. Importantly, you will need to get your partner’s name off the Title to the property once they no longer have any interest in it.

For instance, if you do not do this, your partner could put a registered interest against your property (a caveat). In other words, this is a notice that someone else has an interest in this property. This cannot be lifted unless by consent or by a hearing.

What if my name isn’t on the Title?

Meanwhile, if your name is not on the mortgage or deed of the house then that does not mean you have no rights or claims to the property. This means you should talk to a lawyer.

If you have been living in the property or are in a de facto relationship with your partner, this means the Family Home may be relationship property – unless you have a prenuptial agreement or contracting out an agreement in place.

Download our free guide to Separation Agreements

How to work out a Family Home Market Value yourself

Real estate agents

You can ask real estate agents in your area who are experienced and acquainted with properties which are similar to yours. Perhaps ask for a few different estimates from local real estate agents and take the average of these. Just be aware that if these agents are only looking at comparable sales in your area, you will want to take into account differences such as location, exterior presentation, and conditions of the property and any changes in the CV values.

Online sources

In comparison, a more objective estimate may come from the property’s Quotable Value (QV). QV has some great online resources too. There are both free and paid options to purchase local sales reports which may include your property.

Sometimes the rateable value (government valuation of the house) will be accurate as to market value but it cannot be relied on alone. You can find out rateable value information on your local council’s website for free.

Unless a combination of both of the above methods will give you a more accurate estimate of market value you can both rely on, you risk undervaluing or overvaluing the buy out. In short, get as many assessments as you can possibly afford!

Get this written down in a Separation Agreement

Getting everything formalised in an agreement does not have to be expensive. At Agreeable, we can provide you with a Separation Agreement for just $450, saving you hundreds on upfront costs compared to a typical law firm.

Then, separation agreements require certification and independent advice from a separate lawyer for both of you. Agreeable also provides this service online. Apply for certification with us, and we’ll get you a fixed quote for two separate lawyers to certify your agreement, so you’ll know what it costs before committing. If you accept the quote, we’ll connect you both to your lawyers for online advice & signing. It’s the best value, most stress-free way to get a separation agreement in NZ.

Click here to find out more information about the difference between Separation and Divorce.

Having a certified Separation Agreement has a raft of benefits, not least when applying for finance as some lenders may be wary of unresolved relationship property issues. An agreement shows that everything is formalised and agreed upon.

After the buy out

  1. Pay your partner’s buy out price as you have agreed
  2. Refinance the mortgage: as a result of the buy out, you will likely want to or need to refinance the mortgage on your Family Home.

Check out our other articles:

The Property (Relationships) Act: A Handy Guide for Kiwis in 2023

Separation vs Divorce: The Legal Differences You Should Know

What is a Prenup?

A prenup, or prenuptial agreement, is a legal contract between partners that sets out how assets would be divided upon separation or death. Often created before marriage, a prenup agreement sets out the couple’s relationship property and separate property, meaning they get clarity for the future.


Why get a Prenup?


Commonly referred to as ‘contracting out’, prenups exist to enable partners to opt-out of the equal sharing of relationship property under the Property (Relationships) Act should the relationship or marriage end. They define relationship property, separate property, and property division in the event of a divorce, separation, or death. They are usually premarital agreements, but can also be done after marriage (post-nups) or even if you never plan to marry. Many couples wonder whether they should get a prenuptial agreement. Depending on your situation, it can save a lot of stress (and money) later.

Prenups are growing in popularity in New Zealand, showing that more and more couples consider it normal.

The broad definition of ‘relationship property’ means that you could be sharing all assets with your partner once the relationship ends. Any property acquired during the relationship is considered relationship property, which most people would expect. However, property owned before entering the relationship usually becomes relationship property, too – this might be a house that you bought before the relationship started or a business that you started.

This could put your financial situation in jeopardy. That is, assuming you do not intend to share your assets with your partner. If you do plan to share assets or divide assets in a way to recognise non-financial contributions of either partner, you can even get an agreement that sets this out. Over time, you are also encouraged to review your original prenup and consider getting an updated one that reflects a more fair division. This is commonly recommended, and these agreements are flexible documents that allow Kiwi couples to set out the decisions that are fair and agreed between them.

Agreeable provides Kiwis with online, easy, and cost-effective prenup agreements – backed by expert lawyers around NZ. Click here to find out more about getting your prenup quickly, easily, and without leaving home!


When should you get a prenup?


The Property (Relationships) Act 1976 applies once the parties have been in a qualifying relationship, and you should try to get the prenup done well before your relationship becomes a qualifying one. However, you can still get one later, even after marriage, just keep in mind that the longer you wait, the higher your certification costs may be as the lawyers will have more to consider around relationship property, fairness, and the reasons behind the agreement.

A marriage or civil union is obvious, but factors for whether a qualifying de facto relationship exists include:

  • How long you have been in the relationship;
  • How financially dependent you may be on each other;
  • The ownership and use of shared property;
  • The degree of mutual commitment to a shared life or
  • The reputation and public nature of the relationship.

These factors are only examples, and if knowing whether you are in a de facto relationship is important to you, a lawyer can give you a good indication using their expertise.

Download our free guide to Prenup Agreements

prenup agreement nz

Agreeable is New Zealand’s fastest, easiest, and most cost-effective way to build and certify a prenup agreement.


Am I in a “de facto relationship”?


The Act almost definitely applies if a couple has lived together for three years. However, it might not be necessary to have lived together for this long or to have a joint bank account to be deemed a de facto relationship.

Most noteworthy, in the case of Scragg v Scott [2006] NZFLR 1076, the parties only lived together for short periods because of Mr. Scragg’s overseas work. Therefore no continuous joint living period occurred of more than nine months. Accordingly, the Judge described their living arrangement as a de facto relationship under the Act. This was on a broader consideration of the nature of a relationship contained under section 2D of the Act. The Judge considered the mental aspect described as “a commitment to a continuing future relationship.”


What if you live separately from your partner?


You might still be in a de facto relationship if you live in separate houses and don’t have share finances or a joint account.

Similarly, the High Court in Moon v Public Trust and Anor [2018] NZHC 1169 expanded the scope of the definition of “de facto relationship”. Although the parties had lived in their own separate homes, it was still considered a de facto relationship. In addition, the couple shared few common household possessions for the entire 27 years of their relationship. But Justice Powell did not view the lack of common physical assets as going against a relationship. Instead, the deceased’s health, and the plaintiff’s home-based business made it unreasonable to expect shared living arrangements.


When should you get a prenuptial agreement if you are in a de facto relationship?


Agreeable recommends getting your own prenup agreement within the first three years of the relationship. The longer you leave it, the more your lives and property become intermingled, the greater the risk, and the more complicated the legal advice will become. The lawyers must fully understand the relationship, the assets involved, and the fairness of your agreement.


What is the process for prenuptial agreements?


The drafting process begins with outlining a couple’s finances and assets. To prepare, you might like to read our guide (click the orange button above) or MoneyHub’s guide to prenups.

Before signing the agreement, you and your partner must seek legal counsel with separate lawyers who understand contract law. This is called the “certification process” and Agreeable specialises in helping with this. During the certification, your lawyer will clarify your financial rights, legal rights, and personal consequences of the prenuptial contract. The lawyer will also need to determine whether the agreement is legally sound, considered fair, and that the two parties did not enter into it under duress or undue influence.

You might be entitled to more under the Act, and your lawyer will let you know once they fully understand your situation.


Ready to get a prenup?


Agreeable has helped hundreds of Kiwis with getting their prenuptial agreements through a simple and trustworthy online process. You can purchase a prenup with Agreeable here for $450. After answering some questions, you can download an automatically-generated prenuptial agreement in as little as 15 minutes. Then, we offer a full certification service to help each of you find a lawyer and have the agreement certified at a fixed fee. It can take time and admin to find a lawyer each, which can be a barrier for busy people. That’s why Agreeable has a panel of excellent lawyers that are relationship property experts. In addition, our process is fully online so you can complete it from home.

Certifying the prenup agreement makes it valid and legally binding. Therefore, don’t skip this step. The prenup cost may set you back a bit upfront, but not getting a binding prenup could cost you much more down the track. 


Ready for certification?


If you have the agreement above, and are ready to certify, click here or get in touch with one of Agreeable team. You can email us at or fill in our contact form.


Check out our other articles:

The Property (Relationships) Act: A Handy Guide for Kiwis in 2023

Five Helpful Tips to Save Money on Certification

What is a De Facto Relationship in NZ?

Cost of a Separation Agreement

The cost of getting a Separation Agreement (or Contracting Out Agreement for that matter) is not very expensive relative to the benefit that it provides. Certainly, it is less expensive than going to the Family Court for an order to divide up your relationship property.

It is important to know that the total cost of a separation agreement is variable. The cost will depend on the complexity of your assets (e.g if any trusts, companies, or multiple investment properties are involved) as well as how agreed and aligned the two of you are by the time you are with you certifying lawyers. 

Agreeable is proud to be New Zealand’s fastest, easiest, and most cost-effective solution for drafting and certifying an agreement. We charge just $450 for drafting your agreement via our online questionnaire (you can have your agreement in about 20 minutes), while drafting at a law firm is usually over $1,000. We then offer fixed quotes for certification (the required step of two lawyers to provide advice & sign the agreement with you) which depends on your situation’s complexity, but is often over $1,000 cheaper than the traditional approach of finding your own law firms in-person. The other cost is time, and while our research has found that the traditional approach usually takes 2-3 months, our certifications are typically done in just 2-3 weeks.

Cost comparison


How does Agreeable reduce the cost of a separation agreement?

Our online platform is able to draft your agreement automatically, using the responses that you give to the questionnaire. This means that you can get your initial draft agreement for $450 in just 20-30 minutes (if you bring the information you need with you, download our guide for more!) compared to over $1,000 over days or weeks. 

Then, Agreeable’s certification service is fully online. While many law firms do the basic preparation tasks in a slow, costly way – we have a specialist team and an automated process that gives you the same outcome, but much faster and at a lower cost. Furthermore, we use a nationwide lawyer panel that are familiar with each other while remaining independent. Our panel has worked on many files together, all similar to yours. This means you can be assured of a smooth process (as long as the agreement has been agreed between you and your ex-partner!), and that you are getting a legally binding and trustworthy service while saving weeks of time and thousands of dollars. 

Download our free guide to Separation Agreements


Can I write my own separation agreement?

It is not recommended and in our opinion, it’s not a risking worth taking. Writing your own separation agreement can lead to difficulties in receiving proper, independent legal advice if the agreement is not comprehensive and recognised by your lawyer. We recommend purchasing our separation agreement template which is supported and understood by trusted family lawyers in New Zealand.


What if we also want a divorce?

This is done through an application which depends on whether you both agree to the divorce, or whether only one of you wants to get the divorce.

However, you will then also need a separation agreement detailing how you want to split your relationship property assets. Can’t agree on what is shared relationship property? See our article on what assets are usually deemed to be relationship property.

Above all, note that couples have a time of 12 months from when their marriage is dissolved by a court order to divide up their relationship property.


So what can I expect to pay with Agreeable?

For most straightforward Agreeable agreements, the total cost of drafting ($450) and certification (variable) is likely to be between $1,950 and $2,450 + GST. We almost always offer this at a fixed fee so there are no hidden legal fees or “disbursements” at the end. 

Note that any other legal services such as conveyancing or advice on wills & estates are not included in our quotes, but the lawyers on our panel are always happy to help with these too. All you have to do is ask, and many of them can provide a fixed quote for certain services. Get in touch with the Agreeable team if you have any questions.

It’s helpful to note, also, that if for any reason you choose to stop the certification (one partner changes their mind last minute, or our lawyers advise the party not to sign as the terms are manifestly unfair), then Agreeable will refund the parties for the legal fees that were quoted-for but not used in the process. 


Are there any ongoing costs after separation?

You may need to get conveyancing or trust lawyers involved at this stage to deal with the execution of the terms of the separation agreement. For instance, you may need to change the name of the title on the property to one spouse, or you may need to get Deeds of Settlement drafted up if you have independent trustees which deal with your relationship property. As mentioned above, Agreeable will not include these in quotes for certification, but our lawyer panel can typically help you with these extra legal services if required.

If you have children, you may have already detailed in your agreement how you will each contribute to child-care costs. In particular, child support becomes a topic of ongoing costs. Aside from child support, if your separation agreement deals with on-going maintenance where one party continues to support the other, these may also be the on-going costs involved. This could be in addition to any child support payable. It is also open to a spouse to apply to the Family Court for maintenance on top of child support so it is best to discuss this issue when you are getting the agreement.


What to do with your finances after you have separated have a guide on separation. This details a good step-by-step guide as to what you need to do in order to get your finances in order including:

  1. Set up new bank account
  2. Check your Credit Record and any debts are paid.
  3. Update any rental agreements
  4. Work out your net worth
  5. Create a new budget after adjusting to a change in income

In addition, it is important that if you have any joint debts that you might want to ensure your name is not on these after you have paid off your share (or whatever the case may be).

Similarly, before signing onto a new lease, take your name off a shared lease to avoid being jointly liable for your partner’s debts or if anything goes wrong on this rental property.


Does Agreeable accept Legal Aid applicants?

Unfortunately, Agreeable does not currently provide legal aid services for separation agreements or certifications for couples which fall within the legal aid system. However, it may be in your best interest to head to a local Community Law Centre. They are likely to have a directory of services or lawyers who are skilled in this area to help. They detail whether they can provide services to you here and if you are eligible, they will direct you to the right Legal Aid lawyer.

Another useful resource is the Citizens Advice Bureau which answers some questions relating to separations and divorces.  This article may be a definitive guide on what costs you should expect when separating.

Property (Relationships) Act: A Handy Guide for Kiwis

What is the Property (Relationships) Act 1976?

The Property (Relationships) Act 1976 sets out the rules for dividing property when marriages, de facto relationships, or civil unions end. It confirms an “equal sharing” rule in New Zealand: that all relationship property must be divided 50-50 if the relationship ends, unless the parties “contract out” of the Act.


The key things to know about the Property (Relationships) Act 1976:


  • Equal division: the Act states that relationship property is to be divided equally at the end of the relationship. One spouse may make a claim to the Family Court if they feel that they aren’t receiving an equal share of the assets.
  • Does my relationship qualify? For the equal sharing rule to apply, you must be (or have been) either married, in a civil union, or a de facto relationship (see below).
  • What if I don’t want the Act to apply? You will need a certified “contracting out” agreement, either during the relationship (Relationship Property Agreement) or once it has ended (Separation Agreement). Both of you will need to be involved, you’ll need separate lawyers to advise you on it, and those lawyers must sign the agreement with you.


Agreeable has crafted this handy guide to give you all the key, relevant information about the Act, covering only the most important aspects and removing as much legal jargon as possible. 

Please note: this guide does not constitute legal advice. If you have detailed questions about your specific situation, contact the team at Agreeable and we will point you in the right direction.

Read on to find out more!

property relationships act

What is usually “relationship property”?

If you are married, in a civil union, or in a 3+ year de facto relationship, the Act states that your “relationship property” must be divided equally on separation or death. 

Many have heard of relationship property, but what is it usually? To translate the Act’s large list from Section 8 into something a bit more handy, the following assets are almost always found to be relationship property:

  • The family home, i.e. where you live together (even if one of the spouses purchased it themselves beforehand!)
  • All vehicles, furniture, appliances, and other assets that have been used for the benefit of the relationship.
  • Bank accounts and share portfolios, that have been used, even slightly, for the benefit of the relationship, regardless of whose name they are under.
  • Kiwisaver/superannuation accounts, credit card & student loan debts, and life insurance policies are usually considered relationship property as well.

Most other assets are likely to be considered the “separate property” of either partner, as defined in section 9 of the Act.

It’s often best to take a “better safe than sorry” approach and consider most of your assets to be relationship property. A certified agreement, such as those offered by Agreeable, lets you both decide what is relationship property and what is separate property.

What is a de facto relationship?

The Act defines a de facto relationship as two people, aged 18 or over, who live together. “Living together”, if it has to be interpreted by the Court, can be defined based on a range of factors. These are set out in section 2D of the Act, and include: the duration, whether a shared home exists, whether a sexual relationship exists, and how finances/assets have been arranged in the relationship.

The general tip from most experts in this area is that if you believe your relationship is close to a de facto relationship, you should treat it as de facto and consider what that means for your assets. Like many things, it is better to be safe than sorry.

Tell me more about this “equal sharing” rule

The equal sharing rule gives the Act an important effect on many Kiwis’ lives. It’s a rule that recognises all contributions to a relationship, not just financial contributions, and protects partners that might not speak up for themselves.

But a 50-50 split doesn’t always make sense or seem fair to certain couples. Therefore, Kiwis are able to make their own decisions and legally formalise them. This is called “contracting out” of the Act, by getting a certified agreement. More in the next section:

Section 21: when you don’t want the Act to apply

The key section for most readers will be section 21, which allows for Kiwi couples (either during the relationship or after) to “contract out” of the Act’s equal sharing rule, and confirm their own decisions with a certified agreement.

Relationship Property Agreement 

Often called a “prenup”, “postnup”, or “contracting out agreement”, this is the version of s21 agreement that you get while still in the relationship. This agreement will typically feature a home or business that one party brought into the relationship, or even just set out that each partner would like their bank accounts, Kiwisavers, and debts to remain their own regardless of what happens in the future.

It’s best to get this early (i.e just before marriage or early in it) before your asset pool and contributions get thoroughly mixed. 

Click here to download our guide to RPAs.

You can also read our article about contracting out agreements (or prenups) here, or MoneyHub’s excellent guide on them here.

Separation Agreements

These work in a similar way, but are for separated couples to make final decisions on the relationship assets, and who gets to move on with what. Often, these agreements set out that the family home will be sold and the proceeds divided, or one party will “buy out” the other party’s share of the home. They will also usually list each party’s sole bank accounts, Kiwisaver, and debts as their own separate property.

Click here to download our guide to SAs.

You can also read our article about mortgage buyouts here, or MoneyHub’s excellent guide to Separation Agreements here.

NOTE: your RPA or SA must be certified to be legally binding

To get your agreement certified (and keep you out of court for good!), on top of the agreement itself, you will need two different lawyers (one for each of you) to:

  • Give you full legal advice on the implications of your agreement
  • Witness your signature
  • Sign the agreement with you

Agreeable offers a full, online certification service where we provide you with two lawyers from our nationwide panel, to give legal advice and sign the agreement with you via video signing. We regularly save Kiwis over $1,000 towards the total cost of the agreement. Download our guides above, or get in touch with our team today to find out more.


Other key points to note about the Property (Relationships) Act


There are a number of smaller parts & sections of the Act that may be relevant to you. We will list a few of the more common ones here, but if you have a question that isn’t answered here, feel free to get in touch us here at Agreeable. We have a dedicated team that is just an email, phone call, or live message away – we’re happy to help you figure out what you need today.

What if we have property in a trust?

Trusts do not necessarily protect assets from being considered relationship property. This is particularly true for the family home and family chattels (section 10(4)). The Family Court has been known to order compensation from the party with the trust, to the other party, for a number of factors. Trust assets can be included in contracting out or separation agreements to let you decide whose property it is. 

What if our financial positions might be quite different upon separation?

Section 15 of the Act sets out that the Court may order that the party with “significantly” lower income and living standards to the other party may receive more than half of the relationship property. While this protection is in place, enforcing it would require going to Family Court, which can take many months in New Zealand. Instead, getting a certified separation agreement would keep you out of court and save you much of the hassle.

What if our relationship lasts less than three years?

Different rules apply for relationships of a “short duration”, which is less than three years, according to section 14. For short marriages or civil unions, property is generally divided according to the contributions of each to the relationship. De facto relationships of less than three years are unlikely to apply to the Act, unless there is a child in the relationship, or if failing to bring the relationship under the Act would result in serious injustice.

What happens to relationship property if one partner dies?

If one partner dies and you don’t have a contracting out agreement, the surviving partner can choose between (a) their 50-50 entitlement under the Act, and (b) whatever is set out in the deceased partner’s will. If there is also no will, the Administration Act sets out how the estate will be distributed. Note that the surviving partner has priority over beneficiaries of a will.

What about overseas property?

The key is whether the property is “movable” or “immovable” under the Act (section 7). Movable property is anything that isn’t physical land or buildings, such as vehicles, chattels, bank accounts, shares, debts etc. The Act applies to all movable property, in NZ and overseas. Immovable property is all land and buildings. Only immovable property situated in New Zealand, however, comes under the Act and can be divided up either by court or in your own contracting out agreement. To deal with overseas land/buildings, you will need to get an agreement under that country’s laws.


Thanks for reading! Here are some of our other helpful articles:

What is a Prenup Agreement?

Separation vs Divorce: What You Should Know 

Five Helpful Tips To Save Time & Money on Certification


A Guide to Property Sharing Agreements

What is a Property Sharing Agreement?

A Property Sharing Agreement, also known as a Co-ownership Agreement, is a private contract that sets out the rights and obligations of the co-owners, when a group of people is purchasing a property together. It’s an important document to have when purchasing a property with friends, flatmates, siblings, or extended family.

It’s becoming increasingly popular to team up with a group and contribute to a mortgage together, and it’s a great way to get on the property ladder. That being said, buying a house together can get stressful and messy. There are a number of decisions to make, as a group, about certain situations that may arise as part of the arrangement. Formalising these decisions with a Property Sharing Agreement could help to avoid costly disputes in the future.

Want a Property Sharing Agreement for just $199? Click here to learn more about Agreeable’s online, lawyer-designed service. Even better, use code PSA20 for 20% off your agreement.

Who should get a Property Sharing Agreement?

If you are planning to purchase a property with two or more people (that aren’t your spouse/partner) a Property Sharing Agreement is a widely recommended step in the process. These groups are commonly made up of friends, flatmates, or siblings, and even if you feel that the relationships are amicable, buying a property together can bring up unique challenges and risks. It’s crucially important to discuss all aspects of the arrangement with all other co-owners. Then, recording the key decisions in a Property Sharing Agreement makes a lot of sense to provide clarity for the future. In fact, many banks require a Property Sharing Agreement before lending to a group.

Get our free guide to Property Sharing Agreements

What goes in a Property Sharing Agreement?

The following list addresses most of the key points to consider and decide on before beginning your Property Sharing Agreement:

  1. Address of the property that the parties intend to purchase.
  2. Details of the parties who are buying the property.
  3. Purchase price of the property.
  4. Total initial cash contribution (i.e deposit) towards the purchase price.
  5. Each party’s percentage share (and dollar amount towards) the initial cash contribution.
  6. Purpose for purchasing the property.
  7. How the parties plan to pay for outgoings, mortgage payments.
  8. How maintenance and repairs will be decided.
  9. Whether the parties intend to seek independent legal advice on the implications of the agreement.
  10. Who the mortgagee is (the bank lending to the parties).
  11. Whether the parties want a right of first refusal option.

Agreeable has a simple online questionnaire that generates a Property Sharing Agreement based on your answers. The template it produces has been crafted with help from expert lawyers around NZ. After purchasing and building the draft agreement, you can also get online, expert legal advice on your agreement through Agreeable’s excellent network of lawyers.

property sharing agreement

Get a Property Sharing Agreement online today with Agreeable.

How do we make it legally binding?

Once all parties have read and signed the agreement, the document is legally binding. This is because it is a private contract between the parties. Therefore, getting independent legal advice before finalising and signing it, where the lawyer(s) may suggest edits and changes, is a highly recommended step. 

It is highly recommended that the parties seek independent legal advice before signing the agreement. A lawyer will be able to ensure that the agreement reflects the intentions of the parties, and they may suggest custom edits to the document to do so. Click here to contact Agreeable about getting a Property Sharing Agreement and legal advice, online and without leaving home.

What else should we know about Property Sharing Agreements?

One of the key things to remember is that if one co-owner can’t pay their share of the mortgage repayments, the other co-owners will be liable to cover the shortfall. This is something to ensure that all people in the group are aware of before entering into the agreement.


We’ve realised we need one. Where do we start?

Agreeable is an incredibly easy and cost-effective way to build a solid and binding Property Sharing Agreement, and for just $199 (v.s. up to $1,000 at most law firms).


  1. You’ll get access to our online questionnaire, which usually takes less than 15 minutes to complete if you have all the information on-hand.
  2. Once you’ve answered all questions, you’ll be emailed your draft agreement as a Word document, and you (or our team) can make further edits for you if you need.
  3. We also encourage you to get legal advice on the agreement, and you can contact our team for a fixed quote from one of our excellent lawyer team, who can recommend changes and advise you on the agreement’s implications.

Separation Agreement: Things to Include to Protect Your Finances

Separation Agreement: Things to Include to Protect Your Finances

If you are separating out of a marriage or de-facto relationship, or getting a divorce, you should consider getting a separation agreement.  Other than Court, it is the only valid way of dividing relationship property once a relationship ends.   Some people do this process informally, however, this can result in arguments and Court down the line.

But going to court can be very costly. While the relationship is still on good terms, you might want to negotiate a separation agreement.

Essentially, your separation agreement allows you to dictate how your assets will be divided.  If you get a valid separation agreement, this will override the provisions of the Property (Relationships) Act 1976. But in order for the separation agreement to be legally binding on both parties, the following criteria must be met:

  • the agreement is in writing;
  • it is signed by both parties
  • both parties have had independent legal advice (a different lawyer each);
  • both lawyers have to sign and witness your signing. The lawyer also certifies that they explained the effect and implications of the agreement to you.


What you can expect in our Separation Agreement ‘template’:

Our Agreeable separation agreement includes aspects such as:

  • The relevant dates of the relationship (when you were married or started living together, when you separated);
  • What will happen with the family home and any mortgage on it;
  • What will happen with the chattels, furniture;
  • Any bank accounts and what is to happen with those;
  • Motor vehicles and who gets what;
  • Kiwisaver and superannuation;
  • Debts – who is liable for those;
  • Any adjustments to be made or adjustment payments to make;
  • Administrative clauses, such as the requirement to make complete disclosure and to execute any necessary documents;

We recommend ensuring that you have all the relevant information (most of the info above should apply to you) before purchasing the agreement.

Then, in the certification stage (which you apply for after purchasing, completing, and receiving the agreement):

  • Each party gets independent legal advice on the implications and effects of the Agreement;
  • Costs – normally each party pays their own costs and shares the cost of the agreement and certification; and
  • Witnessing by your lawyer via video signing technology


Things to include in your Separation Agreement

If you are married or in a civil union with your partner and you later decide to apply for a divorce, you can also use the separation agreement as evidence that you have been apart for 2 years. It is necessary to show that you’ve lived apart for two years before you can apply for a divorce.

Before you go ahead and purchase Agreeable’s Separation Agreement, here are some key things most couples think about when they get a separation agreement.


The Family Home

One of the main assets couples own is the home. Regardless of who paid for the Family Home, it will usually be relationship property.

When you separate, you can sell the main Family Home. The sale will be divided in half and shared between you and your partner. Otherwise, one party may keep the house and buy the other partner out. This might be desirable if you have children to consider.

In the Family Court (i.e if you don’t have a signed, binding separation agreement), the judge guides their decision by general principles. You might like to think about these principles when dividing your own relationship property:

  • That since each partner has contributed equally to the relationship, the assets will be shared equally too i.e. split in half
  • The Court won’t look at who is ‘at fault’ for breaking up the relationship
  • Unpaid domestic work has equal value to economic work

Getting a separation agreement means that you don’t have to divide your assets in this way. If you are purchasing a separation agreement and then seeking your partner’s approval, you can show them that you have thought about fair terms.


What about Separate Property?

But you and your partner may also have other assets which are not relationship property.

An example is other investment home(s) which are not the Family Home. This could be ‘separate property’ which does not come under the Relationship Property Act if it can be determined to not be relationship property. Separate property remains the property of the partner who owns it.

Situations can get complicated. For example, sometimes both partners own a home capable of becoming the family home. Generally, when relationship property is to be divided, the home of only one partner will be considered the main Family Home.

Separate property can include property one partner got while they were not living together as a couple. Or it can be property that a partner acquires from another such as an inheritance (unless this property gets mixed with relationship property). If you need legal advice on your individual circumstances, Agreeable can help you find Family Law experts.

Childcare Arrangements

If you have children from your relationship to consider, our Separation Agreement, does allow you to detail what your day to day care and contact of your children will be, access and other major decisions regarding the upbringing of your child or children if they are still minors. Parenting plans are also common and helpful. The court will only be concerned only with what is in the best interests of the children when they consider child-care arrangements.


Your own or your partner’s debt

You or your partner can be liable for any personal debts (even if they are solely in your partner’s name) if they are considered relationship debts. Relationship debt includes any joint debts or debt that is solely in your partner’s name if:

  • the debt was related to the relationship property. For example you used it to get a loan on a car you both used, or for a business you both benefited from;
  • the debt was for the benefit of both partners. For example rent, debt to buy furniture;
  • the debt is the result of the cost of bringing up any children you have together.

You can deal with how to divide up any joint debts or whether one party takes these debts over and provides an indemnity for that party not taking over the debt. Think about your current credit card debts, any remaining hire purchases, student loans etc.  Your lawyer will ask for more information if there are not enough details in your separation agreement. We recommend you spend some time listing these out with your partner.


What about Kiwisaver?

If you have contributed to Kiwisaver after your relationship started, or another employment scheme such as the Police Superannuation or other government scheme, then you need to share this amount with your partner when you separate. Generally, this will be split in half. Your certifying lawyer will need to see proof of the value of your Kiwisaver – unless it is only a small amount.

You can withdraw your Kiwisaver on the grounds of significant financial hardship and serious illness. Your Kiwisaver scheme manager will need to be reasonably satisfied that you or your partner is suffering or is likely to suffer significant financial hardship. Then you can make a significant financial hardship withdrawal. Significant financial hardship includes significant financial difficulties which can come up after separation.


Finally, is your agreement fair?

If you do have to go to court, it is likely that the judge will determine whether:

  • the agreement is fair;
  • you both worked on the agreement without pressure and entered into it freely;
  • it covers all your assets after full disclosure.

The extent to which a judge will stay with your agreement reflects the level of his acceptance of the above three points.

If one of you is in breach of the deed of separation and the other goes to court to enforce it, the judge can alter the terms of the agreement.

A separation agreement is useful in so many ways. It allows for certainty, it ensures your separate property stays your separate property, and probably most importantly, it helps to give parties closure.  


Get your Separation Agreement with Agreeable

People are increasingly turning online to meet their everyday needs. Technology can make this a more satisfying, efficient and easier process. Agreeable offers the following ‘DIY’ services and steps so that you can move on:

  1. Purchase our agreement. You fill out a questionnaire for 10-30 minutes online, and we automatically generate your tailor-made agreement;
  2. Apply for certification of your agreement with our team of expert family lawyers.

Keep in mind that trusts and businesses can make your situation more complicated and increase legal fees at the certification stage.  Please talk to one of us at the Agreeable team about your situation, and we’ll be happy to help.

Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. Agreeable is not a law firm or a substitute for a law firm. 

What Is A Contracting Out Agreement in NZ? 10 Things to Know

What is a Contracting Out Agreement in NZ?

A contracting out agreement is also known as a prenuptial agreement (prenup) or a relationship property agreement. A contracting out agreement is a contract between partners that states who owns what and how to divide up a couple’s property, or assets, in the event of separation.

Contracting out agreements are becoming increasingly popular in NZ. By making a contracting out agreement, you and your partner can “opt out” of the equal sharing rules which normally apply under the Property Relationships Act 1976 (the ‘Act’). The Act allows couples to enter into a private agreement and details how the Family Court might divvy up shared assets.

This prenuptial agreement is for couples or parties intending to enter into a relationship with significant assets, which may be relationship property. Remember – your agreement will not work (it won’t be legally binding) if you do it yourself and it doesn’t comply with the formal requirements.

If you are already in a relationship and looking to separate, you can find more information about separation agreements here.

Agreeable is the fastest, easiest, & best value way to get a contracting out agreement today. Click here to find out more.

How might the Court split our relationship property?

A Court will try to balance the division of property between couples. However, the Court recognises that there might be unequal bargaining power between couples, so the Act encourages couples to decide how to divide relationship property. This means you both choose how you want to separate your assets if your relationship ends.

When can I create a contracting out agreement?

Usually, couples will get contracting out agreements when they enter a new relationship, de facto relationship, or are considering marriage or a civil union.

As with most things, it’s best to get one as early as possible if you think you will need it. This could avoid awkward conversations or potentially expensive proceedings later down the track.

How do I get a contracting out agreement in NZ?

You will need an agreement in writing, and each party will need to receive independent legal advice on the written agreement. It must be signed by both parties and certified by their independent lawyers indicating they have advised on the implications of the agreement. Agreeable has helped hundreds of Kiwis get a certified agreement with our simple, 100% online process.

Download our free guide to Contracting Out Agreements

What are some issues to be prepared for?

Firstly, ensure that your partner is willing to get a contracting out agreement. As this process is voluntary, both parties must be committed.

A common issue with contracting out agreements is that one party may be unaware they are giving away their rights without understanding the consequences of signing the agreement, or what they are entitled to under the Act. The certification system prevents such misunderstandings.

When seeking independent legal advice, the lawyer must advise you whether to sign the agreement or not, or they may suggest better terms. Then, the lawyer witnesses each party’s signature and certifies that they have clarified the effects and implications of the agreement. They will also certify that the contract appears fair. Fair doesn’t necessarily mean 50/50, but it needs to show that it is not a “serious injustice”.

How do I make sure our contracting out agreement is fair?

The Property Relationships Act 1976 also attempts to prevent one partner from entering an agreement if there is evidence of undue influence from the other partner.

A court can set aside a contracting out agreement even if it satisfies the criteria under the Act. This occurs where, having regard to all the circumstances, the court believes the agreement would cause serious injustice. The Court will consider:

  • whether the agreement was unfair or unreasonable in light of all the circumstances at the time it was made;
  • whether the agreement has become unfair or unreasonable in the light of any changes in circumstances since it was made (whether or not those changes were foreseen by the parties);
  • the fact that the parties wished to achieve certainty as to the status, ownership, and division of property by entering the agreement and any other matters that the Court considers relevant.

The best way to ensure your agreement is fair might be by asking a trusted person. You can run this past family or friends for their opinion of your agreement terms. Contracting out agreements aren’t an ironclad guarantee. However, they will help provide certainty and reassurance. This will save you time and money should there be a dispute over assets in the event of a separation (or death).

contracting out agreement

Contracting out agreements could save you time and money in the long run in the event of a separation

I brought ‘x’ into our relationship. When does our separate property become relationship property?

If one party brings significantly more assets to the relationship, both parties will have to define what assets could be classified as separate property and ‘relationship property‘. The Courts will recognise if the non-owning party contributes to any increase in value of the other partner’s separate property. This increase is deemed ‘relationship property’ and thus subject to equal sharing.

The general rule for separate property is that it remains the property of the partner who owns it and does not have to be divided when the relationship ends. For example, gifts, property acquired while not together, increases in separate property value, and any income derived. Separate property can become relationship property if used for family purposes. 

Note that this may include indirect contributions too. Contributions do not have to be financial ones. For example, looking after the family home or children can be deemed a contributing factor. The Courts will take this into account when determining the division of property.

When should we update our contracting out agreement?

Your agreement will not last for an eternity. It won’t cover all future assets that you acquire throughout your relationship which might be considered relationship property. The longer you leave an outdated contracting out agreement, the higher your risk. It is safe to update your agreement when your circumstances change. This might be after a particular event or every couple of years.

We are heading into a new relationship. What if we start a family?

Undoubtedly, children can add complexity to your agreement – and the relationship. If you plan to start a family, our lawyers will advise whether this is a factor to consider. It will likely mean that additional clauses will need to be drafted into your agreement. This is to take into account what happens if one partner has to take time off to care for the children.

We have agreed on what’s mine etc. – what’s next?

You’ll need to write up the agreement and each party will need the contracting out agreement certified by an independent lawyer. Agreeable provides this full service with an affordable, fixed fee to make it as simple, stress-free, and predictable as possible for you and your partner. Our lawyers are experts and independent, which means they will have your best interests in mind.

Our situation is complex. Where do we go to for help?

Agreeable always does a preliminary assessment to determine whether a contracting out agreement suits your specific circumstances. We also have the option of our lawyers providing you with tailored legal services. Please enquire with us about your relationship property issues and we will do our best to help you!

Check out our other articles:

The Property (Relationships) Act: A Handy Guide for Kiwis in 2023

Five Helpful Tips to Save Time & Money on Certification

Dividing your assets in a separation

Dividing your assets in a separation

What happens to the bach, the boat and your superannuation?

It is no secret that when married couples and de facto partners separate, each individual is typically entitled to a 50% share of all relationship property under the Property (Relationships) Act.

What you and your partner may not realise is that your superannuation falls within the definition of relationship property. Given the Law Commission has identified that superannuation, second to the house, can be one of your most significant assets it is important to know how it may be divided if you and your partner separate.1


So how and why is your ex entitled your superannuation fund?

It may seem counterintuitive that your ex could benefit from a superannuation fund that you, yourself, cannot touch until you reach the age of 65. The good news is that property acquired before your relationship is usually treated as separate and will not form part of the divisible superannuation amount. However, the current law says that any increase to your superannuation during your relationship will be divided equally – irrespective of who contributed the funds.

In the event that you do have to give your ex a percentage of your superannuation the process is not as simple as transferring the money from your superannuation to theirs. The most common arrangement involves handing over another asset that is equal in value, such as a lump sum of cash, the boat, or a greater share in the house.

If your pool of relationship property is not large enough to hand over a lump sum, a loan may be an appropriate alternative.

That said, where neither of the above is an option, the court can make an order directly to the manager of your scheme to release the superannuation funds.


The effects of COVID-19

One of the effects of Covid-19 was the plummet of superannuation fund balances, leaving many funds worth far less than their pre-COVID-19 value. In valuing personal property, the court assesses the amount owed at the date of separation. If you and your partner separated pre-COVID-19, this could have a significant impact on the amount of your super that your ex is entitled to. The expected percentage of your superannuation payable to your partner may reflect an amount of money that no longer exists.


How we can help

Separations are stressful enough, and going to court can add a costly and timely burden. COVID-19 is expected to lead to a spike in separations, exacerbated by lockdown, forcing family tensions to bubble to the surface.

If you’ve separated and need to take care of your assets, our separation agreements can help. On the other hand, if you’re entering or already in a relationship, a prenup (Relationship Property Agreement (RPA)) can help provide certainty for the future. Asking your partner for an RPA may not be the most romantic gesture in the world but, in all this uncertainty, there has never been a better time to secure your assets.

Ultimately, our law means that you are entitled to make your own decisions about how to divide your assets. Therefore, instead of leaving it to the Act and the courts to split up what is yours, a prenup or separation agreement is an efficient and cost-effective option.


Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. Agreeable is not a law firm or a substitute for a lawyer.

1Law Commission Review of the Property (Relationships) Act 1976 (NZLC R143) at 15.43.