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Prenup agreement: when or should you get one?

What is a Prenup?

This question is frequently asked by couples, wondering whether they should get a prenup agreement. Depending on your situation, we think this is a good idea.

Recently this was the topic of a NZ Herald article, showing more and more couples consider this normal.

First of all, a prenup enables partners to ‘contract out’ of the equal sharing of relationship property under the Act.

The broad definition of what makes up ‘relationship property’ means you could be sharing your assets with your long-term partner.

Assets which you have brought solely could be relationship property. This is might be a house which only you owned before the relationship started.

This could put your financial situation in jeopardy. That is, assuming you do not intend to share your assets with your partner. No doubt if you want to keep your assets which you brought into the relationship separate, you should get a ‘prenup’.

When should you get a prenup?

The Property (Relationships) Act 1976 applies once the parties have been in a qualifying relationship.

These are usually a marriage, a civil union or de facto partnership for 3 years. A qualifying relationship under the Act has its own definition.

Factors for a qualifying relationship might include:

  • How long you have been in relationship;
  • How financially dependent you may be on each other;
  • The ownership and use of shared property;
  • The degree of mutual commitment to a shared life or
  • The reputation and public nature of the relationship.

These factors are only examples.

Am I in a “de facto relationship”?

The Act almost definitely applies if a couple have been living together for 3 years. But it might not be necessary to have lived together for this long or to have shared finances to be deemed a couple.

Most noteworthy, in the case of Scragg v Scott [2006] NZFLR 1076, the parties only lived together for short periods of time because of Mr. Scragg’s overseas work.

Therefore no continuous joint living period occurred of more than nine months. The Judge described their living arrangement as a de facto relationship under the Act.

This was on a broader consideration of the nature of a relationship contained under section 2D of Act. The Judge considered the mental aspect described as “a commitment to a continuing future relationship.”

What if you live separate from your partner?

If you live in separate houses and don’t share finances you might still be in a “de facto relationship”.

Similarly, the High Court in Moon v Public Trust and Anor [2018] NZHC 1169 expanded the scope of the definition of “de facto relationship”.

Although the parties had lived in their own separate homes, it was still considered a de facto relationship.

In addition, the couple shared few common household possessions for the entire 27 years of their relationship. But Justice Powell did not view the lack of common physical assets as going against a relationship.

Instead, the deceased’s health, and the plaintiff’s home-based business made it unreasonable to expect shared living arrangements.

When should you get a prenup agreement if you are in a de facto relationship?

Certainly, CODR recommends getting a prenup agreement within the first 3 years of the relationship.

The longer you leave it, the greater the risk, the harder the conversation – and the more expensive it could eventually be.

What is the process of a prenup agreement?

First you need a prenup agreement. Prenup Agreements sets out who owns which asset(s). To prepare, you might like to read about what you should consider on separating.

You and your partner will then need to go to independent lawyers. This is called the “certification process”.

During the certification the lawyer will discuss the agreement’s consequences for you personally.

You might be entitled to more under the Act. This will be discussed once your situation is fully understood.

Ready to get a prenup agreement?

You can purchase this here for $345.

Certifying the prenup agreement makes it legally binding. Therefore, don’t skip this step. It could cost you a bit upfront now. But if you don’t, it could end up costing more down the track.

CODR understands this can be a barrier for busy people.

For the reason that it takes time or networks to find a lawyer, CODR has a panel of family lawyers.

Our lawyers are relationship property experts and family lawyers. We provide this service online. Due to this, we offer more affordable rates.

Ready for certification?

If you have the agreement above, and are ready to certify, please contact one of the CODR team. You can email us at info@codr.co.nz or fill in our enquiry form online.

Separation Agreement: Things to Include to Protect Your Finances

Separation Agreement: Things to Include to Protect Your Finances

Introduction: the Separation Agreement

If you are separating out of a marriage or de-facto relationship, or getting a divorce, you should consider getting a separation agreement.  Other than Court, it is the only valid way of dividing relationship property once a relationship ends.   Some people do this process informally, however, this can result in arguments and Court down the line.

But going to court can be very costly. While the relationship is still on good terms, you might want to negotiate a separation agreement.

You might like to refresh your knowledge of what Relationship Property means before you continue reading this article. Essentially, your separation agreement allows you to dictate how your assets will be divided.  If you get a valid separation agreement, this will override the provisions of the Property (Relationships) Act 1976. But in order for it to be legally binding on both parties, the Separation Agreement must be:

  • In writing;
  • Signed by both parties;
  • Following independent legal advice; and
  • A lawyer has to sign and witnesses your signing. This lawyer also certifies that they explained the effect and implications of the agreement to you.
  • Similarly, your partner will also need an independent lawyer doing the same certification.

What you can expect in our Separation Agreement ‘template’:

Our CODR separation agreement includes aspects such as:

  • The date on which you agreed to separate
  • The maintenance of one spouse or partner by the other if appropriate
  • Arrangements for day-to-day care of or contact with children of the relationship
  • Debts or other hire-purchase collateral owned under both names
  • The Family home
  • Dividing up personal property

 

Things to include in your Separation Agreement

If you are married or in a civil union with your partner and you later decide to apply for a divorce, you can also use the separation agreement as evidence that you have been apart for 2 years. It is necessary to show that you’ve lived apart for two years before you can apply for a divorce.

Before you go ahead and purchase CODR’s Separation Agreement, here are some key things most couples think about when they get a separation agreement.

The Family Home

One of the main assets couples own is the home. You could also have jointly-owned chattels. Think about your family car, household furniture and other ‘big ticket’ items.

Regardless of who paid for the Family Home, it will usually be relationship property.

When you separate, you can sell the main Family Home. The sale will be divided in half and shared between you and your partner. Otherwise, one party may keep the house and buy the other  partner out. This might be desirable if you have children to consider.

In the Family Court, the judge guides their decision by general principles. You might like to think about these principles when dividing your own relationship property:

  • That since each partner has contributed equally to the relationship, the assets will be shared equally too i.e. split in half
  • The Court won’t look at who is ‘at fault’ for breaking up the relationship
  • Unpaid domestic work has equal value to economic work

However, your separation agreement does not have to divide your assets in this way. If you are purchasing a separation agreement and then seeking your partner’s approval, you can show them that you have thought about fair terms.

What about Separate Property?

But you and your partner may also have other assets which are not relationship property.

An example is other investment home(s) which are not the Family Home. This could be ‘separate property’ which does not come under the Relationship Property Act if it can be determined to not be relationship property. Separate property remains the property of the partner who owns it.

Situations can get complicated. For example, sometimes both partners own a home capable of becoming the family home. Generally, when relationship property is to be divided, the home of only one partner will be considered the main Family Home.

Separate property can include property one partner got while they were not living together as a couple. Or it can be property that a partner acquires from another such as an inheritance (unless this property gets mixed with relationship property). If you need legal advice on your individual circumstances, CODR can help you find Family Law experts.

Child-Care Arrangements

If you have children from your relationship to consider, our Separation Agreement, does allow you to detail what your day to day care and contact of your children will be, access and other major decisions regarding the upbringing of your child or children if they are still minors.

The court will only be concerned only with what is in the best interests of the children when they consider child-care arrangements.

Your own or your partner’s debt

You or your partner can be liable for any personal debts (even if they are solely in your partner’s name) if they are considered relationship debts. Relationship debt includes any joint debts or debt that is solely in your partner’s name if:

  • the debt was related to the relationship property. For example you used it to get a loan on a car you both used, or for a business you both benefited from;
  • the debt was for the benefit of both partners. For example rent, debt to buy furniture;
  • the debt is the result of the cost of bringing up any children you have together.

You can deal with how to divide up any joint debts or whether one party takes these debts over and provides an indemnity for that party not taking over the debt.

Think about your current credit card debts, any remaining hire purchases, student loans etc.  Your lawyer will ask for more information if there is not enough details in your separation agreement. We recommend you spend some time listing these out with your partner.

What about Kiwisaver?

If you have contributed to Kiwisaver after your relationship started, or another employment scheme such as the Police Superannuation or other government scheme, then you need to share this amount with your partner when you separate.

Generally, this will be split in half. Your certifying lawyer will need to see proof of the value of your Kiwisaver – unless it is only a small amount.

You can withdraw your Kiwisaver on the grounds of significant financial hardship and serious illness. Your Kiwisaver scheme manager will need to be reasonably satisfied that you or your partner is suffering or is likely to suffer significant financial hardship. Then you can make a significant financial hardship withdrawal. Significant financial hardship includes significant financial difficulties which can come up after separation.

Finally, is your agreement fair?

If you do have to go to court, it is likely that the judge will determine whether:

  • the agreement is fair;
  • you both worked on the agreement without pressure and entered into it freely;
  • it covers all your assets after full disclosure.

The extent to which a judge will stay with your agreement reflects the level of his acceptance of the above three points.

If one of you is in breach of the deed of separation and the other goes to court to enforce it, the judge can alter the terms of the agreement.

A separation agreement is useful in so many ways. It allows for certainty, it ensures your separate property stays your separate property, and probably most importantly, it helps to give parties closure.  

Buy your Separation Agreement Now

People are increasingly turning online to meet their everyday needs. Technology can make this a more satisfying, efficient and easier process. This is exactly the aim of CODR, an online dispute resolution platform and service.

CODR offers the following ‘DIY’ services and steps so that you can move on:

  1. Purchase our agreement. It will automatically generate your tailor-made agreement.
  2. Contact us to certify your document with our expert Family Lawyers.
  3. Go ahead and put the terms of your agreement into action if needed.

Things such as Family Trusts and businesses can make your situation more complicated.  Please talk to one of us at the CODR team about your situation.

If you have a dispute over relationship property, CODR can also help you resolve this if both parties are willing to negotiate or arbitrate. Otherwise you can consider what your options are with our Family Law experts. Please contact us on what your next steps may be.

 

Disclaimer: Any information we provide is general information. Please do not rely on the contents of this article as legal advice. CODR is not a law firm or a substitute for a law firm. 

4 Tips to Avoid Construction Disputes

Construction in New Zealand appears to be at an all-time high. This will no doubt have welcome consequences for increased infrastructure, but it can also mean increased construction disputes with little time to resolve them given project management timelines.

 

Although CODR provides avenues for resolution if matters do come to a head, preventative measures are almost always a better approach.

 

Here are some tips to prevent getting yourself involved in a construction-related dispute:

 

1. Put all discussions into writing

 

It’s very easy for things to go awry when there is nothing documenting the agreement between the parties or variations to that agreement. Things to look out for are usually small variations from discussions or oral communications which aren’t documented in the original contract. That’s why it’s important to capture everything in writing and any variations to the original agreement should also be documented, approved and signed off. 

 

Having an agreement which clearly sets out what happens when a partnership or business relationship breaks down can minimise the cost of resolving a dispute. For example, you may choose to include provisions in your construction agreement that makes mediation mandatory if there is a dispute during your build.

 

2. Keep everyone in the loop

 

One of the best ways to avoid conflict and misunderstanding is to ensure clients, contractors and other related parties know are fully informed at all times. This may include informing them regularly about any changes in costs, budgets and/or scheduling. This helps to establish a good working relationship with open lines of communication that can prevent litigation.

 

3. Act before it escalates

 

If you take steps to deal with a smaller issue when it arises, you can often prevent it developing into a major problem.  

 

4. Think about who you want to do business with

 

Before you start a construction project, do your due diligence on your potential counterparty.  Consider, in depth, whether they are the type of people you would want to work with before signing up to anything.

 

Disputes are a negative distraction that drain human resources and have a negative impact on profit margins.  Accordingly, it makes sense to employ an approach that minimises the chance of them arising.

DIY Relationship Property Disputes

“See you in court” might be very satisfying to say after a bitter break-up, however, this strategy may not serve you that well in the long term. 

 

We have written on the key aspects of relationship property disputes before and your options when you have a relationship property dispute. However, we are now offering a service where a couple can quickly and easily settle relationship property issues themselves after a relationship breakdown.

 

The mechanism is a separation agreement and it is what we recommend for all parties that are still on reasonably good terms with each other.  The other three forms of resolution – mediation, arbitration or the courts all take significantly more time and cost a lot more money.

 

After purchasing the separation agreement, a previously loaded set of questions obtains all the relevant information from you and inputs it into your agreement – creating it “automatically” and without the need for a lawyer to spend their time drafting it.

 

However, for a separation agreement to be enforceable, both parties must receive independent legal advice and have the agreement certified by their advising lawyers.  We also offer this certification process via CODR.

 

For an agreement, advice and certification from two lawyers, the cost is normally between $1500 – $1800 + GST (depending on the complexity of your particular agreement).

 

If it’s possible for you, we think a self-directed separation agreement should be your preferred option given its time, cost and stress savings.  If you have any questions, please don’t hesitate to call one of the team at CODR on 0800 263 700.

Before Mediation: 5 Ways to Help Solve a Dispute Yourself

We often see disputes where the parties do not want to go to court.  This could be because of the cost of the court process, or some other reason entirely.  In these cases, we often suggest mediation for the parties.  Mediation is frequently considered as a way to resolve a dispute that requires relatively low investment of time and money.  While this is the case, there are even steps you can take before mediation to resolve a dispute:

 

  1. Focus on emotions.

 

A study done by neuroscientist Antonio Damasio focused on people with damage in the part of the brain where emotions are generated.  They all seemed normal except for the fact that they could not feel emotions.  They also all had something else in common – they could not make decisions.  They could describe what needed to be done logically and rationally, however, they struggled to make even simple choices (such as what to eat).

 

In our experience, the resolution of disputes is almost always significantly impacted by emotional drivers.  Knowing this, ask yourself what could be responsible for leading you to this dispute.  Could one party feel their expertise hasn’t been recognised?  Or maybe one party feels their contribution hasn’t been given the respect it deserves?

 

Consider these questions and others and ask yourself how some of the damage can be undone.

 

  1. Be objective in your communication.

 

Attempt to express your feelings in a way that is clear, appropriate and professional. Also focus on “I” rather than “you” statements. This helps to reduce defensiveness. For example, “I am upset that my effort has not been recognised,” rather than “You are in the wrong because you haven’t noticed everything I’ve done.”

 

We believe in-person communication is best, closely followed by a phone call.  Tone is often hard to decipher in an email and this method of communication should be used with this in mind.

 

  1. Listen Actively.

 

People want to be heard.  And they want to know they’ve been heard.  While this is very difficult to do, when the other person is talking, don’t try and think of a sharp response – just listen to what they’re saying.  It’s subtle, but the other person will notice.

 

A technique to demonstrate that you’ve been listening is to briefly summarise what the person has been saying to you.  If there are any inaccuracies, the other person should correct you.  Keep going back and forth until you receive a “that’s right” in relation to one of your summaries.

 

  1. Take responsibility for your own actions and behaviour.

 

If you think you’ve been at fault (and you probably have in some way), admit it.  Appropriate concessions not only make you look reasonable overall, but it also makes you more credible on issues where you stand your ground.

 

  1. Think creatively.

 

A win-win situation can come from adding elements to the negotiation/dispute that you didn’t consider to be relevant.  This ties in with tip number 1 (focus on emotions), once you have established the emotional drivers, consider creatively how they can be met to satisfy the counterparty.

 

 

Hopefully, with these 5 steps, you can resolve your dispute without experiencing further time and money costs.