Considering marrying or living with someone, but worry about how this will affect your assets or property you have inherited or likely to inherit?
Entering a second marriage or major relationship and concerned that your property is protected for your children, especially after your death?
Not sure of your entitlement to property which is in your partners name or in the name of a trust?
HOW CAN WE HELP?
We can help by explaining the law, your rights and your partner’s rights, and with advice on whether you might benefit from entering into a Relationship Property Agreement (or Contracting Out Agreement) with your partner or by forming a family trust.
Should a relationship end, we can prepare a Separation Agreement. This would clarify arrangements and allow both parties to move on.
Contact us for calm, clear and practical help.
FREQUENTLY ASKED QUESTIONS
What is a Relationship Property Agreement?
A Relationship Property Agreement is an agreement between married couples, de facto couples or civil union couples (including same sex couples) to alter the rules in the Property (Relationships) Act for the division of relationship property that would otherwise apply without such an agreement.
An agreement (usually called a contracting out agreement or “pre-nup”) may be entered into before the relationship commences or at any time during the relationship and it can continue to have effect after the death of a partner. It is becoming more common for people in new relationships to have an agreement to ensure that property they have acquired prior to the relationship (in particular, houses and businesses) remain their separate property for the duration of the relationship or some other agreed upon period.
A separation agreement in a lot of ways is similar to a contracting out agreement (or “pre-nup”) but is entered into at the end of the relationship. Its key purpose is to provide certainty around the division of property so that the parties can move forward without concern that a claim may be made against their assets down the track.
If an asset is only in my name (for example KiwiSaver), can it still be ‘Relationship Property’ and subject to a 50/50 sharing?
Yes. Relationship property covers things of financial value that you gained during the relationship even if it is only in your name. It can include:
- the family home and contents, other land or buildings and vehicles;
- salary/wages, KiwiSaver earned during the relationship, insurance pay-outs, superannuation you received, rents and other income from joint property;
- any property gained when you were in the relationship or had the relationship in mind and intended for both of you to use;
- non-personal debts (your personal debts are your own responsibility);
- gifts or inheritances that have become mixed with relationship property; and
- increases in the value of relationship property, income from it or the proceeds from the sale of it.,
Can my partner and I stipulate what each of us own and what we own together if we separate or die?
Yes, a couple can choose to share their property differently than how the Property (Relationships) Act sets out. However, for this to be legally binding they need to enter into a contracting out agreement (sometimes known as a “prenuptial” agreement – or “pre-nup”) which details how their property is owned between them. Such an agreement must be in writing and must meet various legal requirements, including that the parties each get independent legal advice.
I am in a long-term second relationship but wish to leave all my estate to my children from my first marriage. Can I prepare my will accordingly?
Yes, but it is not as simple as that.
The Property (Relationships) Act covers division of property when a relationship ends due to the death of a spouse or partner. The surviving spouse or partner must choose whether to apply for relationship property to be divided under the Act (which means they are legally entitled to 50% of the couple's combined assets) or whether to take what is left to them under the deceased’s will. If a surviving spouse or partner makes a claim under the Act, this takes precedence over any other person’s claim under inheritance law (such as your children). This recognises that one spouse or partner should not be able to give away the other spouse’s or partner’s share of relationship property in their will. Therefore, what you think you might be giving your children under your will, may in fact be relationship property which your spouse or partner is entitled to, ahead of your children.
You will also need to enter into a contracting out agreement with your partner to ensure your wishes under your will are enforceable and that your property ownership is structured correctly.
I am separating from my spouse. We have agreed how we will divide how assets. Do we need to see a lawyer about this?
You don’t have to do anything official when you separate from your partner. However, a separation agreement is highly recommended as it keep things clear, especially if you have joint finances and property together, and allows you both to move on with peace of mind. For example, you may think you have finalised your property division based on a verbal agreement, only to be caught unaware by a claim by your ex-partner 18 months later. If you wish for the arrangement to be legally enforceable it must be in writing, and you will both have to obtain independent legal advice.
Suzie clearly delivered to myself and others a focused and friendly approach to all the issues presented to her. We had some older family member matters to resolve; Wills, Trust issues, License to Occupy, etc.. Suzie provided exceptional service, concise and sound advice which we accepted and followed through in the execution of the required legal documents. Suzie is professional, focused and pragmatic in providing intelligent legal solutions and recommendations.
Our family has used Rosie for everything from wills and family trusts to house purchases and sales. I can absolutely recommend her, she is easy to deal with, communicates well, makes things simple and to top it off is a lovely person to work with.
“Rosie helped us with our wills and powers of attorney and she made it such an easy process for us. She gave us a lot of advice and explained different ways we could do it, all along with a friendly professionalism. I cannot recommend her enough and will definitely be using her services in the future.”