Is Your Overseas 'Pre-Nup' Valid in New Zealand?

If you or someone you know has signed a Prenuptial Agreement, Premarital Agreement, Antenuptial Contract or Contracting Out Agreement in a country outside of New Zealand, then you/ they should find out if and how that Agreement applies in New Zealand. Irrespective of where these types of documents are signed, they generally have a similar purpose; that being to determine the status, ownership and value of assets at the start and end of a couple's relationship. But, are they valid when you have moved away from the country of signing?

What Does New Zealand Law Say About Overseas 'Pre-Nups'?

An overseas agreement will be considered valid in the following circumstances:

• The spouses or partners have agreed in writing and the agreement is valid according to the law of the foreign country.
• The Agreement was entered into before or at the time the marriage or de facto relationship began. If an agreement was entered into after a period of de facto relationship, but before marriage, it is possible that the Agreement will not be upheld in New Zealand.
• The Agreement needs to specifically recognise that the law of a country other than New Zealand is to apply in the case of separation or death.
• The Agreement must not be contrary to justice or public policy.
• The parties have not subsequently agreed to be bound by the Property (Relationships) Act 1976.

There is a vast body of case law where Courts have considered whether such agreements are enforceable in New Zealand. Some of the important factors that the Courts have considered include:

• The length of time the couple lived in both the foreign country and New Zealand since signing the Agreement.
• What, if any assets have been purchased by the couple in New Zealand.
• What, if any assets the couple own in the foreign country.
• Whether the Agreement substantially disadvantages one of the parties.
• Whether the Agreement provides a regime for asset sharing.
• How, if at all, the parties have relied on the Agreement in New Zealand.

As each Agreement is unique to the couple that it has been prepared for, it is best to seek specialist legal advice on whether or not your Agreement will be enforceable in New Zealand. If you are seeking advice or have any questions in respect of this article, please contact:

Alissa Bell (abell@mcveaghfleming.co.nz) or (09) 415 4477 for our Albany Office.

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