This agreement is made on 21 November 2001,

between Robin Huia Spencer, Nurse, Notown (Robin) and

Kerry Lee Young, Teacher, Notown (Kerry) (the parties), who [are a married couple] or

[are de facto partners as defined by section 2 of the Act] or

[are contemplating entering into a marriage or civil union] or

[are contemplating entering into a de facto relationship as defined by section 2 of the Act],

and, for the purpose of contracting out of the Act (the general scheme and effect of which is outlined in the notes to this form) in terms of section 21 of the Act [other than on the death of 1 or both of the parties], agree that

[, once they have entered into this agreement,] or

[, if, after they enter into this agreement, they enter into [a marriage or civil union] or [a de facto relationship as defined by section 2 of the Act],]

the status, ownership, and division of their property to which this agreement applies is to be as follows:

• Nothing in this form or these notes is intended to take the place of legal advice, and you should take independent legal advice before entering into any agreement based on this form.

• Under the Act, an agreement based on this form is void unless each party to it has independent legal advice before signing it. The court may give effect to a void agreement in certain circumstances, but, if it does not do so, the Act has effect as if the agreement had never been made.

• Using this form is optional. The purpose of an agreement based on this form is to contract out of the Act by providing that listed property is to be separate property. That is just one, quite limited, approach to contracting out of the Act.

• Couples who are considering entering into a contracting-out agreement may find that one based on this form does not suit their circumstances or requirements at all, or will suit them only if this form is modified. They should also be aware of these matters (outlined in the rest of these notes):

  • the general scheme and effect of the Act:

  • the general effect and implications of an agreement based on this form:

  • procedural requirements for entering into an agreement, and other rules that apply to an agreement (for example, the court’s power to set an agreement aside).

In general terms, the purpose of an agreement based on this form is to contract out of the Property (Relationships) Act 1976. The following notes are only a guide to the general scheme and effect of the Act:

• the Act is mainly about how the property of married couples, civil union couples, and couples who have lived in a de facto relationship is to be divided up when they separate or one of them dies:

• different rules apply depending on the length of the marriage or the civil union or the de facto relationship:

• in the case of marriages and civil unions, special rules apply to marriages and civil unions of less then 3 years:

• in the case of de facto relationships, the Act usually applies only when the de facto partners have lived together for at least 3 years, but it may apply to shorter de facto relationships in certain circumstances:

• in general, the couple’s property is to be divided equally between the couple.

The following notes are only a guide to the general effect and implications of an agreement based on this form.

• This form of agreement applies only to property owned by one of the parties alone when the agreement is entered into, and listed in Schedule 1 or Schedule 2 (see clauses 1 and 2). (Other property the parties acquire later is dealt with by this agreement only if it is acquired out of, or is the proceeds of a disposition of, or is derived from, that property listed in Schedule 1 or Schedule 2.)

• If property owned by one of the parties alone is listed in Schedule 1 or Schedule 2, it must be dealt with after the agreement takes effect as if it were that party’s separate property within the meaning of the Act (see clauses 1 and 2).

• Separate property may be made the subject of orders under the Act on a division of relationship property under the Act (for example, orders referred to in section 15A(3)).

• As to property acquired out of separate property, the proceeds of any disposition of separate property, increases in the value of separate property, income or gains derived from separate property, and when separate property becomes relationship property, see sections 8 to 10 of the Act.

An agreement entered into under section 21 of the Act is (see section 21F of the Act) void unless—

• it is in writing and signed by both parties:

• each party to it has independent legal advice before signing it:

• the signature of each party to it is witnessed by a lawyer:

• the lawyer who witnesses the signature of a party certifies that, before the party signed it, the lawyer explained to that party its effect and implications.

The court may give effect to a void agreement in certain circumstances (see section 21H of the Act) but, if it does not do so, the Act has effect as if the agreement had never been made (see section 21M of the Act).

Even though an agreement satisfies the requirements of section 21F of the Act, a Family Court Judge may set it aside if, having regard to all the circumstances, the Judge is satisfied that giving effect to it would cause serious injustice (see section 21J(1) of the Act). In deciding whether giving effect to an agreement under section 21 of the Act would cause serious injustice, the Judge must (see section 21J(4) of the Act) consider—

• the provisions of the agreement:

• the length of time since it was made:

• whether it was unfair or unreasonable in the light of all the circumstances at the time it was made:

• whether it has become unfair or unreasonable in the light of any changes in circumstances since it was made (whether or not those changes were foreseen by the parties):

• the fact that the parties wished to achieve certainty as to the status, ownership, and division of property by entering into the agreement:

• any other matters that the Judge considers relevant.

Other aspects of agreements under section 21 of the Act are governed by other provisions in the Act (for example, in Part 6 or section 47) or by the general law (for example, the law of undue influence).