We understand that the national lockdown period can be a stressful time for families going through a separation or who are looking to protect their assets in a time of financial uncertainty. A lot of people may be in the process of dividing up their property and be ready to sign an Agreement. But what happens now in light of the level 3 and 4 restrictions?

For a Separation and Property Division Agreement or Contracting Out Agreement (‘prenup’) to be legally binding and enforceable, the following requirements need to be met:

  • the Agreement must be in writing and be signed by both parties;
  • each party must receive independent legal advice before signing the Agreement;
  • each party’s signature must be witnessed by their respective lawyers; and
  • their respective lawyers must certify that they have advised as to the effect and implications of the Agreement.

At Morrison Kent, we can provide independent legal advice to our clients over email, telephone and other media (Zoom, Skype, etc.). We can prepare, review, and amend Agreements remotely. When it comes to witnessing a party’s signature and certifying an Agreement, we can also often do this using audio-visual link technology where required.

It is important to note, however, that this mode of signing has not yet been ‘tested’ by the Court, and we cannot say for certain that it will properly adequately meet the witnessing requirement. There is, therefore, an element of risk involved in doing so.  However, in our view, this is a low risk in most cases, and there are adequate ways of reducing the risk further. That is, including a clause in the Agreement which allows for the Agreement to be executed using AVL technology, and ensuring that you get proper advice on this issue. At Morrison Kent, we have experience in advising clients remotely and executing Agreements using AVL technology due to the number of clients we have around New Zealand and overseas.

Separation and Property Division Agreements

For some people, it may be essential to have their Agreements executed during the national lockdown, for instance in a separation when, for example:

  • an agreement has been reached after months (or years) of hard negotiation, and you do not want the other person to be given an opportunity to change their mind;
  • if you are looking to sell or purchase a property in the coming weeks/months; or
  • if you require a settlement sum to be paid out sooner rather than later.

Contracting Out Agreements

Likewise, for couples wishing to enter into a Contracting Out Agreement (‘prenup’) it may not be appropriate to delay the signing of an Agreement when, for example:

  • you have been in a de facto relationship for almost 3-years;
  • you are purchasing a property with your partner in unequal shares, and settlement is to take place during the lockdown period or shortly thereafter;
  • you are unwell and want to ensure your assets are protected;
  • you are considering intermingling separate property with relationship property to help get by (for example, using your inheritance to pay down the mortgage over the family home); or
  • you wish to ensure that you will not be liable for your partner’s debts being incurred during this period.

For more information

In these circumstances, it is important that people obtain legal advice as soon as possible.

If you require any assistance with resolving relationship property matters, or if you wish to enter into, or execute, an Agreement please contact one of our expert family law team members for advice:

Debbie Dunbar | 021 899 148 | Debbie.dunbar@morrisonkent.com 

Maretta Twentyman | 021 166 9059 | Maretta.twentyman@morrisonkent.com

Racheal Allison | 027 566 6640 | Racheal.allison@morrisonkent.com

Mikayla Turner | 027 535 0099 Mikayla.turner@morrisonkent.com

Our people are continuing to work from home and are available by phone, email, text, facetime, zoom, whatever way we can be to support you. We are well resourced and remain committed to providing cost-effective and creative solutions for you.

Not sure what kind of assistance you need? We have a range of practical resources on our website to help point you in the right direction.

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COVID-19 - Separation and Relationship Property Agreements - Morrison Kent