What is a Prenup?

A ‘prenup’ is a prenuptial agreement, 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. These premarital agreements define relationship property, separate property, and property division in the event of a divorce, separation, or death. Such agreements outline each party’s responsibilities and property rights for the duration of the relationship. Many couples wonder whether they should get a prenuptial agreement. Depending on your situation, we think this is a good idea.

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

The broad definition of ‘relationship property’ means you could be sharing your financial assets with your long-term partner. Premarital property owned before entering the relationship could become relationship property. This might be a house that you bought before the relationship started.

This could put your financial situation in jeopardy. That is, assuming you do not intend to share your assets with your partner. No doubt if you want to keep the assets you brought into the relationship separate, you should organise a prenuptial agreement. Any property acquired during the relationship is considered marital property or community property. If you’re planning to marry, a prenuptial agreement is only valid if it is completed prior to marriage. Once you’re married, the assets of both parties could be considered marital assets.

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.

These are usually a marriage, a civil union or a de facto partnership for three years. A qualifying relationship under the Act has its own definition.

Factors for a qualifying relationship might 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.

Am I in a “de facto relationship”?

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

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 greater the risk, the more complicated the prenup conversation – and the more expensive it could eventually be.

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 about what you should consider on separating.

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 $350. After answering some questions, you’ll have your automatically-generated prenuptial agreement today. Then, we can also find you a lawyer to certify your written prenup agreement.

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 prenup could cost you much more down the track.

It takes time or large networks to find a lawyer, which can be a barrier for busy people. That’s why Agreeable has a panel of lawyers that are relationship property experts. In addition, because we provide this service online, our rates are more affordable.

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.