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Prenuptial Agreement

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CONTRACTING OUT AGREEMENT

THIS CONTRACTING OUT AGREEMENT (the "Agreement") MADE ON THIS ________ day of ________________, ________

BETWEEN:

_______________________________

- AND -

_______________________________

of _________________________________________

BACKGROUND
This Agreement is made between _______________________________ and _______________________________ (collectively the "Parties" and individually a "Party") who are contemplating marriage or civil union each to the other.
The Parties intend to contract out of the Property (Relationships) Act 1976 (the "Act") and pursuant to section 21 of the Act agree that if, after they enter into this Agreement, they enter into a marriage or civil union the status, ownership, and division of their property is to be determined according to this Agreement.
The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
The Parties recognise the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, will not apply to them.
The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
The Parties also acknowledge that they have had the opportunity to retain their own lawyer and to receive independent legal advice regarding the terms of this Agreement.
Each Party agrees and affirms THAT:
1. The Parties did execute the Agreement voluntarily;
2. This Agreement was not unconscionable when it was executed;
3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
4. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
5. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
The Parties acknowledge that this Agreement will continue upon termination of marriage or civil union whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the upcoming marriage or civil union, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

PROPERTY
The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property"), with the property as is listed in the attached Schedules "A1" and "A2" considered Separate Property, except where:
1. it is Shared Property; or
2. there is proof of shared legal ownership.
Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
DEBTS
The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts"), with the debts listed in the attached Schedules "B1" and "B2" considered Separate Debts, except where:
1. it is Shared Debt; or
2. there is proof of shared legal responsibility.
SUPPORT
The Parties agree that the investment of time or labour with respect to personal service in the property of the other, or otherwise, will be deemed to have been made gratuitously, and without expectation or right of compensation unless agreed to the contrary in writing.
It is the intention of the Parties to forever release each other from any alimony or support obligations now and in the future no matter how their circumstances may change. They will not apply now or in the future under any Federal or Territorial legislation for support. They each waive any rights they may have to proceed against the other under any law or statute for payments of alimony or support and rely upon the law of contract to govern in respect of this issue.
The Parties realise that their respective financial circumstances may be altered in the future by changes in their health, the cost of living, their employment, their marital status, the breakdown of their relationship, or otherwise. No such changes will give either Party the right to seek support under any legislation. It is understood by each Party that this Agreement represents a final disposition of all maintenance and support issues between them.
ESTATES AND TESTAMENTARY DISPOSITION
Except as otherwise provided in this Agreement, the Parties acknowledge that each has the absolute right to dispose of their estate by will without leaving any portion to the other, or to the heirs, executors, administrators, or assigns of the other.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
Except as otherwise provided in this Agreement, the Parties waive and release the other from any and all rights of every kind, nature, and description that each may acquire as spouse or surviving spouse in the property, assets, or estate of the other.
SEVERABILITY
Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
INTENTION OF THE PARTIES
Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
DUTY OF GOOD FAITH
This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
FURTHER DOCUMENTATION
The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
TITLE/HEADINGS
The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
ENUREMENT
This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
GOVERNING LAW
The laws of New Zealand will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
TERMINATION OR AMENDMENT
This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
ENTIRE AGREEMENT
The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

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What is a Prenuptial Agreement?

A Prenuptial Agreement, commonly referred to as a prenup, is a contract that a couple creates before getting married. It outlines the financial responsibilities and ownership of assets if a divorce, separation, or death of a spouse occurs.

Legally, in New Zealand, a prenup is known as a contracting out agreement. Therefore, our document template is titled Contracting Out Agreement. On other occasions, a prenup may be called an antenuptial agreement.

If you’re a couple who lives together but is not planning to get married, you’re also known as a de facto relationship. In this case, you can use the LawDepot Cohabitation Agreement to create a financial plan similar to a prenup.

What things can you outline in a prenup?

A Prenuptial Agreement outlines key details about the ownership of physical and monetary assets. It also describes your and your partner’s financial responsibilities if you separate or divorce. More specifically, a prenup outlines:

Separately owned assets
The division of shared assets
Separate debts
The division of joint debts
Spousal support
Spousal inheritances

Additionally, a prenup includes the names of your and your partner’s children. It also asks you to list the names of your and your partner’s children from previous relationships who may influence how inheritances are distributed when a spouse passes away.

Who should sign a prenup?

Prenuptial Agreements are not just for the rich and famous. Any couple who is engaged can enter into a Prenuptial Agreement.

Creating a prenup can help you protect the personal assets you bring into a marriage. At the same time, you can clearly outline debt ownership to protect each other from liability.

Although prenups can be for any couple, you should especially consider signing one if any of the following applies to your circumstances:

One of you has a significant amount of debt
You have children from previous relationships
You have a significant difference in income
One of you own intellectual property
One of you is expecting an inheritance or has family wealth

Say you have shares in a successful business that you run as your primary source of income. Your prenup can outline this as a separate asset. If your marriage ends, the agreement will keep those shares in your name, and you won’t need to divide them during a divorce. Your prenup can assure your fiance that, even though they won’t receive a share of that asset, they’ll get spousal support.

Why should I get a Prenuptial Agreement?

There are several benefits to having a Prenuptial Agreement for both you and your fiance. To start, it can reduce conflict during a divorce case or separation. With a prenup, you plan for the worst-case scenario while having level heads. Without a prenup, you and your fiance might be fueled by negative emotions during a separation or divorce, and conflict can escalate.

Having these details in writing also creates transparency in your marriage as you plan what you both want for the future. Setting out clear expectations creates honesty and promotes frank conversations. For example, being honest and managing debt liability can ensure that one of you isn’t responsible for the other’s pre-existing debts in the future.

A prenup goes further to protect children from previous relationships. It can ensure that inheritance provisions prioritise children when one of you passes away.

Lastly, a prenup can help save time during court proceedings in the case of divorce, separation, or death, as you’ll already have a legally binding agreement that you both agree upon.

Can I make a Prenuptial Agreement after marriage?

In New Zealand, a contracting out agreement can be made after marriage and it is best to do so in the first three years of marriage. While LawDepot’s prenup template is technically a contracting out agreement, it is only for couples who are contemplating marriage or a civil union. Therefore, it should not be used by couples who are already married.

The Property (Relationship) Act typically divides property equally after three years of marriage. In the first three years of marriage, the family home and its furnishings will usually be divided according to each partner's contribution to the marriage, so each partner is more likely to receive the property they purchased back. Property may be divided differently if children are involved and one partner has been the primary caregiver, or if one partner has made a substantial financial contribution.

You’ll need a prenup containing your decisions regarding separate assets to opt out of these provisions. This is why a prenup is also known as a contracting out agreement. Having time to draft, review, and receive legal advice is important before entering a prenup. Therefore, having one before marriage is the best practice as it will ensure that you have made the best legal decisions for your relationship.

How to write up a Prenuptial Agreement

LawDepot’s template lets you and your partner easily create your prenup. First, select your current living arrangements, then continue with the following steps:

1. Include both parties’ names

Include your and your future spouse’s contact details and information. If you and your fiance don’t live together, you must include both of your home addresses in your agreement.

2. Disclose separate and shared assets

Typically, separate assets are assets and property that you acquire before your marriage. This property can include real estate, business shares, vehicles, heirlooms, taonga, and more. You may also gain separate property after marriage, like an inheritance you wish to keep in only your name.

It’s crucial that you and your fiance fully disclose your financial assets. Fully outlining your assets can protect them in case of separation or divorce.

You’ll acquire shared assets and property throughout your marriage. However, it’s possible to have shared assets before getting married. This is also known as relationship property. Shared assets can include real estate, joint bank accounts, home furnishings, and vehicles.

If you separate, a prenup determines how your shared property is divided. Division can be:

A 50/50 split
According to the financial contribution of each spouse

You can also establish a division process tailored to your and your spouse’s unique situation. However, it’s important that the division is fair.

3. Provide separate and shared debts

You should disclose all your personal debt to your partner before entering a prenup. Separate or personal debts are in your own name and will be your personal responsibility to pay back if you and your spouse separate.

Our questionnaire will prompt you to list your and your future spouse’s separate debt, which can include credit card debt, loans, and more.

You’ll also need to include any shared debt, also known as relationship debt. If you separate, you and your spouse will be responsible for paying these off together. Examples of shared debts include mortgages, joint credit cards, business debts, purchases for the household, or costs incurred raising a child.

You may wish to divide them equally, where you’re both 50% responsible. Alternatively, you can decide how to divide debts in a way you both agree is acceptable.

4. Include any children

Next, include the names of any children belonging to you or your fiance. They can be children you have together or children from previous relationships.

Including your and your spouse’s children in your prenup is essential. Children have rights that may impact the prenup. For example, if you have a child from a previous marriage, their inheritance may change what your spouse gets if you pass away.

A prenup cannot include terms regarding child custody, child visitation, or child support for existing or future children. The courts will determine these matters during a separation or divorce.

5. Add your pets

Adding any pets to your agreement is important as they are considered property. Having pets in your agreement determines who has custody of any pets you already have in your relationship.

6. Determine spousal support

Include details about future spousal support, also known as spousal maintenance. Your prenup can determine how much support you or your fiance will pay the other, or you can leave it to the court to decide who pays and how much.

In New Zealand, spousal support is determined on a case-by-case basis. New Zealand courts use the Family Proceedings Act 1980 Part 6 to decide on support.

7. Add spousal inheritance

Finally, include details on what inheritance the surviving spouse will receive when one of you passes away. You don’t have to place any restrictions on what you inherit from each other’s estates. However, you may choose that you and your spouse only inherit according to each other’s Last Will and Testament. This is a common choice when you have children from previous relationships who will also inherit from you.

In addition to inheriting from your Last Will and Testament, you can also specify in your prenup any other rights the surviving spouse may have, such as entitlement to death benefits under the superannuation plan or insurance policies.

It’s critical to be consistent in drafting your estate planning documents and your prenup so they align with your and your fiance’s choices for the future. This can make the execution of an estate a smoother process for the surviving spouse, as the court may uphold a prenup if it contradicts the deceased’s Last Will.

Are Prenuptial Agreements legally binding in New Zealand?

Yes, Prenuptial Agreements are legally binding in New Zealand under Section 21 of the Property (Relationships) Act 1976. For an agreement to be legally binding, it must:

Be in writing and signed by both parties
Have each party receive independent legal advice before signing
Have the signatures of both parties witnessed by their respective lawyers
Have the lawyers witnessing the signatures certify that each party received an explanation of this agreement's effect and implications

Can you cancel a Prenuptial Agreement?

Yes, you can cancel a Prenuptial Agreement if both parties agree in writing with signatures to terminate the contract.

If only one of you decides they want to cancel the prenup, you can apply to the court to set the agreement aside. However, it must be considered unjust or unfair for the court to nullify it.

Say circumstances have significantly changed since making the agreement. If these changes leave you in an unfair position, leading to hardship during a separation or divorce, the court may overturn the contract. The court will then divide property as per the Property (Relationship) Act and establish any necessary spousal support.

If you need to cancel or void a prenup, you should seek legal guidance to begin the process.

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Free Prenuptial Agreement

Create Your Free Prenuptial Agreement

Prenuptial Agreement

QGlivetogether

Your Prenuptial Agreement

What is a Prenuptial Agreement?

What things can you outline in a prenup?

Who should sign a prenup?

Why should I get a Prenuptial Agreement?

Can I make a Prenuptial Agreement after marriage?

How to write up a Prenuptial Agreement

1. Include both parties’ names

2. Disclose separate and shared assets

3. Provide separate and shared debts

4. Include any children

5. Add your pets

6. Determine spousal support

7. Add spousal inheritance

Are Prenuptial Agreements legally binding in New Zealand?

Can you cancel a Prenuptial Agreement?

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