Prenuptial agreements have been permitted in New Zealand since enactment of the Matrimonial Property Act 1976.
The Property Relationships Amendment Act 2001 renamed the 1976 act as the Property (Relationships) Act 1976 and extended the property division regime to the division of the relationship property upon separation or death of married couples, partners in de facto relationships and partners in same sex relationships. The general rule is that of equal division of property brought into being during the relationship.
Section 21 of the Property (Relationships) Act 1976 expressly authorizes married and de facto couples to enter into opt-out agreements with respect to the status, ownership and division of their property, including future property. The agreements must conform to certain formalities.
Previously if such an agreement caused "injustice" it could be set aside. From 2001 such agreements cannot be set aside unless it is established that they cause "serious injustice." Accordingly, it is expected that not many agreements will be set-aside in the future. The purpose of the reform was to provide greater certainty as to the enforceability of contracting-out agreements.
The Act also contains (Sec. 7A(2)) somewhat unusual provisions concerning the applicability of foreign prenuptial agreements to “relationship property” as defined by New Zealand law, which require that prenuptial agreements drafted anywhere that involve a New Zealand connection should be drafted carefully.
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