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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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Last updated March 11, 2024

What is a Prenuptial Agreement (Prenup)?

A Prenuptial Agreement, commonly called a prenup, is a domestic contract that you and your future spouse create before getting legally married (you cannot make a prenup after marriage). It sets out the current and future financial responsibilities of each partner if they separate, divorce, or when one partner dies.

People use a prenup to clarify the property, assets, and debts that are separately owned or shared during and after marriage. This may be the case when each spouse believes they’ve worked hard to accumulate wealth before meeting their partner, and they want the division of property to be fair if the relationship ends.

A Prenuptial Agreement is also known as a/an:

Premarital Agreement
Antenuptial Agreement
Contracting Out Agreement

What does a prenup include?

A Prenuptial Agreement generally covers how to divide an estate after a marriage ends by identifying shared and separate property.

The terms covered in LawDepot’s Prenuptial Agreement template are as follows.

1. Party details

Include the full names and home addresses of each spouse entering into the agreement.

2. Separate and shared assets

Each spouse may specify the assets that they’ll retain ownership of in the event of a breakup. Any such asset is known as separate property.

In most cases, the spouse with ownership rights keeps these assets if the relationship ends. However, spouses may have rights to certain assets (e.g., the matrimonial home) regardless of who’s on the property title.

For example, say you identify a sports car as a separate asset and the car increases in value during the years you’re married.

Without a prenup to address the appreciation, a court may rule that your spouse is entitled to half of that value. This may be the case if they contributed during your relationship by paying for replacement parts or maintenace.

Any assets that you list as shared property in your prenup will be divided equally in the event of a breakup (unless the spouses agree otherwise).

3. Separate and joint debt

You may wish to keep debts separate to avoid burdening each other with unpaid expenses.

If one spouse accumulated debt before the relationship, they can claim sole responsibility for repaying this debt in the prenup.

If you have joint debt, you may wish to specify how much each spouse is responsible for in the event of a breakup.

Typically, joint debts are split evenly between partners. However, you can use a prenup to allocate more or less debt to one partner over the other.

4. Children

A prenup cannot include terms regarding child custody, child visitation, or child support for existing or future children.

However, if you have children, you should list them in your Prenuptial Agreement. This is because children can have rights (such as the right to inheritance) that impact how courts enforce your prenup in the future.

5. Spousal support

Addressing spousal support (also called spousal maintenance) in your Prenuptial Agreement is optional.

Consider the following factors when determining support payments:

Which spouse will pay support to the other
The specific amount to be paid
The frequency of payments (e.g., weekly or monthly)
The payment method (e.g., online transfers)
Any conditions on the support payments (e.g., a spouse is entitled to support payments if the marriage lasts for at least five years; support payments may end if there is a change in income)

If you don’t specify a spousal support plan, courts will determine payments according to the Family Proceedings Act 1980. They’ll also consider the varying circumstances at the time of the divorce.

6. Inheritance rights

Once married, your spouse typically becomes entitled to half of your estate. However, you can use a prenup to limit their inheritance rights if you wish to distribute a certain amount to another party, such as other family members, children, or a charitable organization.

Some people also choose to restrict their spouse’s inheritance if they believe the surviving spouse will be financially secure without it.

Note that a probate court will typically uphold a Prenuptial Agreement, especially if the terms are consistent with terms in the deceased’s Last Will and Testament.

Why should I get a prenup?

Some people may feel reluctant to sign a Prenuptial Agreement because of the stigma associated with it. However, you don’t need to look at this domestic contract as a relationship red flag.

In fact, a notable benefit of creating a prenup is that it initiates an honest conversation about your financial situation before marriage. For instance, you’d likely be surprised or offended to find that you’re partially responsible for paying off a large debt that your spouse hid from you.

There are many reasons for a couple to create a Prenuptial Agreement, such as when:

You have children from a previous relationship
You have significant personal assets that you wish to keep separate
You have sizeable investments in a business
You want to avoid any conflict or confusion in the event of a divorce, separation, or the death of a spouse

While a prenup protects the individual assets that a person worked hard to earn, it doesn’t mean that you won’t have shared assets as a couple. You can continue to build a life with your partner while using a prenup to protect both of your best interests.

If you don’t create a Prenuptial Agreement and your relationship dissolves, courts will divide marital property according to the Property (Relationships) Act 1976.

Keep in mind that this act applies to any qualifying relationship. This might include unmarried couples that meet the criteria of being in a qualified relationship according to law (e.g., those in a civil union or de facto relationship).

For unmarried couples who want to protect individual assets, a Cohabitation Agreement serves a similar purpose to a prenup.

Is a Prenuptial Agreement enforceable?

When executed properly, a Prenuptial Agreement is a legally binding contract. However, a court may rule that the contract (or a part of it) is void if one party can prove that the agreement is unfair or illegal.

For instance, a Prenuptial Agreement may be void or voidable if:

There was a failure to disclose all assets
There is evidence of fraud
There is evidence of duress (i.e., an action that forces another person to comply with the agreement) or unfairness
It was signed involuntarily
It includes content that is illegal or against public policy
It includes content that is perceived to promote divorce or separation

To avoid arguments over unfairness, duress, or fraud, each party in the Prenuptial Agreement should seek independent legal advice. Getting your contract reviewed by a lawyer helps ensure its enforceability in the future.