When you’ve separated from your spouse or partner, it is important that you need to find out where you stand and feel secure about your property - this is where a relationship property lawyer can help.

Whether you are entering into a new relationship, making arrangements in a current relationship or dividing property upon separation from a former spouse or partner, you may need to put into place agreements that will comply with the law, give you certainty and protect your property.

When a couple separates, one of the most important things that needs to be completed is the separation of property.  Property is generally defined as either being relationship property or separate property

Relationship property is usually divided equally between a couple on separation when they have been in a qualifying relationship

A qualifying relationship is a relationship of three or more years.  It is not restricted to a marriage and can also be a civil union or de facto partnership. 

You do not have to be physically living with the person to be in a de facto relationship, as there are other factors that are considered when deciding when a couple are in a de facto relationship.

In terms of relationship property, this is all property accumulated during or before the relationship but used for the benefit of the relationship. 

Sometimes property that would have become relationship property can be separate property if the couple entered into a Contracting Out Agreement or “pre-nuptial” agreement at any point in time in their relationship.

A relationship breakup can be a difficult time.  A Relationship Property Agreement in which you agree with your former partner on the division of property is a sensible step towards finalising all matters. The law requires that all such Agreements are in writing and each party must receive independent legal advice. In addition, the lawyers must sign the document to certify that they have provided that advice.

We suggest getting advice early on in the process, so you are fully informed throughout. 

Call us for a relaxed friendly chat on 04 4736 850 or email us at lawyers@raineycollins.co.nz

 

The difference between a relationship property agreement and a contracting out agreement…

Many people can be confused by the legal terms relating to relationship property-based agreements such as Contracting Out Agreements and Relationship Property Agreements.

The main difference between a Relationship Property Agreement and a Contracting Out Agreement is the time in the relationship that the agreements are entered into.

For the purposes of relationship property, a “relationship” is defined by law as a marriage, de-facto relationship, or civil union.

While the timing of entering into a marriage or civil union is clear, a qualifying de-facto relationship for relationship property purposes begins three years after the start of a new relationship, and it is from that time when the de-facto legal position will apply to the equal division of property between partners.

Contracting Out Agreements

Contracting Out Agreements are generally entered into before a relationship becomes a “relationship” under the legal definition. The purpose of this agreement is to define each partner’s separate property and the property of the relationship. This dictates how the assets and liabilities are to be split in the event of a breakup.

The agreement is called a “contracting out” agreement as the parties are agreeing to contract out of the default legal position upon a breakup.

Contracting Out Agreements are often called “pre-nups”, a colloquial term.

A Contracting Out Agreement is also a “living” document in the sense that it can be reviewed and amended by the parties throughout the life of the relationship.

Relationship Property Agreements

On the other hand a Relationship Property Agreement is entered into after the breakdown of a relationship. The agreement, often referred to as a “settlement agreement” or “separation agreement”, sets out the agreed division of assets and relationship property post-breakup.

This agreement allows partners to divide their relationship property in a way other than that prescribed by the default legal position. If the partners had a Contracting Out Agreement, it would become relevant at this point, as it would indicate how the partners had previously agreed to divide property.

Relationship Property or Separation Agreements are also designed to be full and final, and often cannot be reviewed or set aside once they are signed, unless the terms of the agreement create, or created, serious injustice to one party.

These process of creating these agreements and entering into them can become very technical and confusing. There are some strict requirements that must be met for them to be valid, so it clearly pays to get everything right from the outset.