A prenuptial agreement (prenup) is a legal contract that defines how assets are divided in the event of separation or death. Established prior to marriage, it distinguishes between relationship and separate property, providing couples with essential financial clarity for the future.

Why get a prenup?

Commonly referred to as "contracting out," these agreements allow partners to opt-out of the equal sharing rules under the Property (Relationships) Act . By defining what constitutes relationship versus separate property, they provide a clear framework for asset division in the event of divorce, separation, or death. While typically signed before marriage, these flexible "post-nuptial" agreements can also be established during a marriage or a long-term de facto relationship.

Prenups are increasingly common in New Zealand as couples seek to manage the broad legal definition of relationship property. Without one, assets owned prior to the relationship such as a business or a home could be subject to equal division. Conversely, for couples buying a home together, an agreement can protect unequal deposit contributions while allowing for a gradual shift toward a more shared interest as the life together evolves. Experts recommend reviewing these documents periodically to ensure the division remains fair and reflects the couple’s current circumstances.

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When should you get a prenup?

The Property (Relationships) Act 1976 takes effect once a relationship is considered "qualifying" under the law. Ideally, a prenuptial (or contracting out) agreement should be finalised well before this milestone. While you can enter into an agreement at any stage including after marriage, delaying the process often increases legal certification costs. This is because lawyers must then navigate a more complex web of existing relationship property, fairness considerations, and the specific motivations behind a later-stage agreement.

While marriages and civil unions are clearly defined, determining the start of a "qualifying de facto relationship" is more fact specific. Key factors include:

• Duration: The total length of the relationship
• Financial Interdependence: The degree to which you support one another financially
• Property Usage: How shared assets are owned and utilised
• Commitment: The level of mutual commitment to a shared life
• Public Reputation: How the relationship is perceived by the community and others

These factors are only examples. If you are unsure of your current legal status, a lawyer can provide an expert assessment based on your specific circumstances.

Agreeable is New Zealand’s fastest, easiest, and most cost-effective way to build and certify a prenup agreement.

Am I in a “de facto relationship”?

While the Act almost certainly applies once a couple has lived together for three years, a joint bank account or a continuous three-year living arrangement isn't always strictly required for a de facto relationship to be recognised.

A landmark example is Scragg v Scott [2006] NZFLR 1076, where the parties never lived together for more than nine months at a time due to one partner’s overseas work. Despite the lack of a continuous "joint living" period, the Court ruled that a de facto relationship existed under Section 2D of the Act. The Judge looked beyond physical cohabitation, focusing instead on the broader nature of their bond—specifically the "mental aspect" of their commitment to a continuing future together.

What if you live separately from your partner?

It is a common misconception that a de facto relationship requires shared finances or a joint residence. In reality, you may still be legally considered "de facto" even if you maintain separate homes and independent bank accounts.

The High Court reinforced this in Moon v Public Trust [2018], further expanding the legal scope of what defines a relationship. In this case, the couple maintained separate households and shared very few physical assets throughout their 27-year history. Justice Powell ruled that a lack of common property did not preclude a de facto status; instead, the Court looked at the practicalities of their lives. Factors such as the deceased’s health and the plaintiff’s home-based business made shared living arrangements impractical, yet the underlying nature of their commitment remained clear.

When is the best time to enter into a prenuptial agreement during a de facto relationship?

Agreeable recommends finalising your agreement within the first three years of your relationship. The longer you wait, the more your lives and assets become intermingled, which significantly increases both your legal risk and the complexity of the advice required. As a relationship matures, lawyers must conduct a more exhaustive review of your shared history, the current value of your assets, and the overall "fairness" of the proposed division. All of which can lead to higher costs and more administrative hurdles.

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 our guide (click the orange button above) or MoneyHub’s guide to prenups.

Before signing the agreement, 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 secure your future with a prenup?

Agreeable has helped hundreds of New Zealanders protect their assets through a simple, trustworthy, and entirely online process. For just $595, you can generate a tailored prenuptial agreement in as little as 15 minutes by answering a few straightforward questions.

Once your draft is ready, we can assist with the certification process to help you and your partner meet the mandatory legal requirements at a fixed fee. We know that finding two separate, expert lawyers can be a time consuming barrier for busy couples. To solve this, Agreeable provides access to a panel of experienced relationship property lawyers who can complete the process remotely, allowing you to finalise your agreement from the comfort of your home.

Legal certification is what makes your agreement valid and binding. it is a step that cannot be skipped. While there is an upfront cost to a professional prenup, it is a minor investment compared to the potential financial and emotional cost of an unprotected split further down the track.

Ready to certify your agreement?

If you have already drafted your agreement and are ready to proceed with the legal certification process, click here to get started.