By Tara Grant - 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The as yet unpublished research by University of Otago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…