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!


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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

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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 info@agreeable.co.nz 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?