Prenuptial Agreements in New Zealand
Your complete guide to prenups - what they cover, how much they cost, legal requirements, and whether you need one before getting married.
Typical prenup cost
Required for validity
To prepare & sign
Legal framework
What is a Prenuptial Agreement?
A prenuptial agreement (also called a prenup, premarital agreement, or contracting out agreement) is a legal contract made before marriage that determines how property and finances will be divided if the relationship ends. In New Zealand, prenups are governed by Section 21 of the Property (Relationships) Act 1976.
What a Prenup Can Do
- • Protect existing assets: Keep what you had before the relationship
- • Protect inheritance: Ensure inherited assets stay in your family
- • Protect a business: Shield your business from relationship property claims
- • Clarify finances: Set clear expectations about money
- • Avoid disputes: Reduce conflict if the relationship ends
Why the Legal Name Matters
In New Zealand, "prenuptial agreement" isn't a legal term - the correct name is a Section 21 Contracting Out Agreement. This agreement allows couples to "contract out" of the Property (Relationships) Act 1976, which otherwise divides relationship property 50/50 after 3 years together.
What You CAN Include
- • Division of existing assets
- • Treatment of inherited property
- • Business ownership protection
- • Property purchased during relationship
- • Investment accounts and savings
- • Spousal maintenance terms
What You CANNOT Include
- • Child custody arrangements
- • Child support obligations
- • Anything illegal
- • Provisions encouraging divorce
- • Personal behavior requirements
Who Needs a Prenuptial Agreement?
Prenups aren't just for the wealthy. They're useful in many situations where the default 50/50 property division rules might not be appropriate.
You May Need a Prenup If:
- • You own a business
- • You have significant assets before marriage
- • You're expecting an inheritance
- • You have children from a previous relationship
- • There's a large wealth disparity
- • You're getting married later in life
- • This is a second marriage
- • You have debt you want to keep separate
- • Family money or property is involved
You Might Not Need One If:
- • Neither of you has significant assets
- • You're comfortable with 50/50 division
- • You've been together a long time already
- • All your assets are already joint
- • You have similar financial situations
De Facto Relationships
The same rules apply to de facto relationships. After 3 years together, the Property (Relationships) Act 1976 applies. If you're moving in with someone and want to protect your assets, you should consider a "contracting out agreement" even if you're not getting married.
Legal Requirements for a Valid Prenup
For a prenuptial agreement to be legally binding in New Zealand, it must meet strict requirements under Section 21F of the Property (Relationships) Act 1976:
Mandatory Requirements
In Writing
The agreement must be written - verbal agreements are not enforceable.
Signed by Both Parties
Both you and your partner must sign the agreement.
Independent Legal Advice
Each party MUST receive advice from their own separate lawyer before signing. You cannot share a lawyer.
Lawyer Certification
Each lawyer must sign a certificate confirming they explained the agreement's effects and implications to their client.
Warning: No Shortcuts
If any of these requirements are not met, the agreement is not valid and can be easily overturned by the court. Many DIY prenups or those without proper legal advice fail for this reason.
Prenup Costs in New Zealand
Since both parties need their own lawyer, you'll have two sets of legal fees. Here's what to expect:
Simple Prenup
- • Few assets to protect
- • Straightforward arrangements
- • Both parties cooperative
- • Standard clauses
Standard Prenup
- • Multiple assets
- • Property and investments
- • Some negotiation needed
- • Custom provisions
Complex Prenup
- • Business ownership
- • Trusts involved
- • International assets
- • Extensive negotiation
Worth the Investment
A few thousand dollars now is far cheaper than litigation later. Contested property disputes can easily cost $50,000-$100,000+ in legal fees and take years to resolve. A well-drafted prenup provides certainty and peace of mind.
Can a Prenup Be Overturned?
Yes, under Section 21J of the Property (Relationships) Act 1976, a court can set aside (invalidate) a prenup in certain circumstances:
Technical Failures
- • Not in writing
- • Not signed by both parties
- • No independent legal advice
- • Missing lawyer certificates
- • Advice given after signing (not before)
Conduct Issues
- • Non-disclosure of assets or debts
- • Fraud or misrepresentation
- • Duress or undue pressure
- • Unconscionable conduct
- • Taking advantage of vulnerability
"Serious Injustice" Test
Even if the agreement is technically valid, the court can set it aside if enforcing it would cause "serious injustice". This is a high threshold - simple unfairness isn't enough. The court considers:
- • How long the relationship lasted
- • Whether circumstances have significantly changed
- • Whether one party would be left destitute
- • Whether both parties understood what they signed
How to Make Your Prenup Bulletproof
- Full disclosure: Be completely honest about all assets and debts
- Plenty of time: Don't sign right before the wedding - allow weeks for consideration
- Fair terms: Don't be greedy - grossly unfair terms invite challenges
- Proper process: Ensure both lawyers properly certify the agreement
- Review regularly: Update if circumstances significantly change
Need a Prenuptial Agreement?
Our experienced Auckland family lawyers can help you create a prenup that protects your assets while meeting all legal requirements.
Frequently Asked Questions
How much does a prenup cost in NZ?
A prenup in NZ typically costs $2,500-$8,000 for both parties combined. Simple agreements cost less; complex ones with businesses, trusts, or multiple properties cost more. Remember both parties need separate lawyers, so you're paying for two sets of fees.
Can prenuptial agreements be overturned in NZ?
Yes, but it's difficult if done properly. Courts can set aside prenups for technical failures (like no independent legal advice), fraud, duress, or if enforcement would cause "serious injustice." Following proper procedures makes your agreement much harder to challenge.
When should I get a prenup?
Ideally, start discussing a prenup several months before the wedding. Allow at least 4-6 weeks for the legal process. Signing right before the wedding can look like duress and may make the agreement more vulnerable to challenge.
Can I use a prenup template?
Templates can provide a starting point, but you still need independent legal advice for the agreement to be valid. A template without proper legal process is worthless. Both parties must have their own lawyer certify the agreement - there's no way around this requirement.