Customs officials seize goods at Aotearoa New Zealand’s ports of entry every day, from fruit and veg and animal parts to firearms and illegal drugs. But one thing we don’t expect to be stopped at the border is the validity of pre-nuptial agreements from overseas.
Hundreds of thousands of migrants come to our shores every year in search of pastures new. Many of these migrants, particularly those who come from a country with a similar legal system, will have relationship property agreements that were drawn up and signed in their home countries. It may come as some surprise to these folks that their legal documents won’t necessarily be upheld by our courts.
This is where you might be tapping your forehead as you triumphantly exclaim “Aha! But section 7A of the Property (Relationships) Act 1976 says that agreements from overseas are valid here!”
Well yes, sometimes they are. The Act provides that, if spouses have agreed in writing that the property law of a country other than New Zealand is to apply, and if their agreement is valid according to the laws of that country, then the Act will not apply. However, the courts have been slow to give blanket authorisation to every such agreement. One example is a classic South African ante-nuptial agreement designed to opt-out of the accrual system in South Africa. Previously the courts have said that this kind of agreement is designed to opt-out of South African property law alone, and that it is not designed to apply the world over.
There are quite a few different factors the courts will consider when deciding whether to uphold a foreign relationship property agreement. One of these is a requirement that the agreement expressly invokes the application of foreign law. This can be a problem because so few relationship property agreements anywhere in the world are drafted to apply outside of the country in which they are signed.
This is where your alarm bells might be going off. How is a couple in say, South Africa, who might have no idea that they will migrate to New Zealand in a few years’ time, supposed to know and contemplate how our relationship property laws might apply? It’s a headache they don’t know they will have!
If you have a contracting out agreement, pre-nuptial agreement, pre-marital agreement or antenuptial agreement from overseas and you think there is even the slightest chance that you may need to rely on it, then seek independent legal advice. Edmonds Judd can help advise you on whether the courts are likely to uphold it or if a new agreement should be entered into (assuming you and your spouse both agree). In New Zealand, contracting out agreements can be entered into before or during the de facto relationship or marriage, but bear in mind that legal entitlements may be quite different under New Zealand law.
Jamie Graham
