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Pre-Nuptial Agreements

By Tara Hurley - 2 Jun 2011

Academic Analysis of case law reveals that a third of pre-nuptial agreements are overturned by the courts… so why are so many agreements being thrown out?

The as yet unpublished research by University of Otago academics, Mark Henaghan, Margaret Briggs and researcher Thomas Cleary suggests most of these agreements were overturned because the correct legal process was not followed when the agreements were first drawn up. 

So, how do you get it right?

People entering into a pre-nup or s21 agreement must be independently advised (i.e each of the couple will each need their own independent lawyer).  The lawyer needs to go beyond a mere explanation of the agreement and must advise on the merits and wisdom of signing (or not signing) the agreement as it relates to each person's individual circumstances.  Specialist advice from a lawyer with expertise in relationship property law is a must if you want the agreement to stand up.

Is your pre-nuptial agreement robust?

If you already have a pre-nuptial agreement it is important to review it from time to time, much like you should regularly review your Will.  How robust the agreement is will depend on how relevant it continues to be or, as the case may be, how irrelevant it might have become…


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