Learn when a New Zealand contracting out agreement (prenup) can be void or set aside. Core Legal Masterton & Wellington explains legal requirements, serious injustice, examples, and how to protect your assets.

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When Can a Contracting Out Agreement Be Void or Set Aside?

Contracting out agreements—often called prenuptial agreements or “prenups”—allow couples to decide in advance how their property will be divided if their relationship ends. While these agreements offer valuable protection, they are not always watertight. Under the Property (Relationships) Act 1976 (PRA), an agreement can be declared invalid or set aside if it fails to meet legal requirements or would cause serious injustice.

Understanding these rules is essential for anyone entering a marriage, civil union, or de facto relationship in New Zealand.

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How Contracting Out Agreements Work

The PRA presumes equal sharing of relationship property after the end of a qualifying relationship. This includes:

• Marriage

• Civil union

• De facto relationships lasting over three years

• Shorter de facto relationships where there is a child

A contracting out agreement allows couples to exclude certain assets, protect separate property, or agree to unequal division. However, the agreement must comply strictly with the law to be enforceable.

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Legal Requirements for a Valid Contracting Out Agreement

To be legally enforceable, the agreement must:

1. Be in writing and signed by both parties

2. Be signed after each party receives independent legal advice

3. Be witnessed by each party’s own lawyer

4. Include a lawyer’s certificate confirming the agreement’s effects were explained

If any of these are missing, the agreement is void for non-compliance. In limited cases, the Court may still give effect to it—but only if the non-compliance did not materially prejudice either party.

Common reasons for invalidity include:

• No independent legal advice

• No lawyer witness signatures

• A party not understanding what they were signing

In these situations, the Court is unlikely to enforce the agreement.

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When a Valid Agreement Can Still Be Set Aside

Even when all requirements are met, the Court may set aside the agreement if enforcing it would cause serious injustice.

The Court considers:

• The terms and fairness of the agreement

• Time elapsed since signing

• Whether the agreement was reasonable at the time

• Whether circumstances have changed significantly

• The parties’ need for certainty

• Any other relevant factors

Example

A couple signs an early-relationship agreement excluding one partner from any interest in the family home. They then live together for 10+ years, raise children, and one partner becomes financially dependent as a caregiver.

The agreement may later be considered seriously unjust and set aside.

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Other Reasons an Agreement May Be Set Aside

A contracting out agreement may also be invalidated if:

• Duress or undue influence was present

• There was unconscionable conduct or unequal bargaining power

• A party lacked full understanding of the agreement

• The agreement failed to anticipate major life changes (children, illness, career sacrifices, etc.)

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How to Protect Your Contracting Out Agreement

To reduce the risk of the agreement being overturned:

• Ensure each party receives proper legal advice

• Avoid signing under pressure, urgency, or emotional distress

• Include review clauses for major life events

• Negotiate terms fairly and transparently

A well-drafted agreement protects assets while remaining fair to both parties.

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Frequently Asked Questions (FAQ)

1. Can a prenup be thrown out in New Zealand?
Yes. If it fails legal formalities or results in serious injustice, the Court can set it aside.

2. What makes a contracting out agreement invalid?
Lack of legal advice, missing lawyer certifications, or misunderstanding the agreement.

3. Can changed circumstances void a prenup?
Yes. Major changes—such as children, illness, or financial dependence—may make the agreement unfair.

4. Do both partners need their own lawyer?
Absolutely. Independent legal advice is mandatory.

5. How often should we review our agreement?
Whenever major life events occur, and ideally every 3–5 years.

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For personalised advice, Core Legal Masterton & Wellington offers cost-effective, fixed-price consultations to help you understand your options and protect your future.