Introduction

In the daily joys and intricacies of legal practice it is tempting to overlook the social and legal context of s 21 agreements. Yet they are not simply legal contracts between two people who are either dangerously entwined or becoming disentangled that are entered into in a vacuum; s 21 agreements are domesticated creatures of statute.

In England (and historically NZ), pre-nuptial contracts were until recently declared void as contrary to public policy under the rule in Hyman v Hyman. The rationale for that approach was because such agreements were considered to be undermining of the very institution of marriage since they effectively contemplated its demise. Additionally, in the first half of last century, marriage generated a legally enforceable obligation to continue to live together and enjoy (or endure) conjugal rights. A pre-nuptial contract was therefore considered to be objectionable on the ground that it undercut those legal obligations, as well as being morally offensive.

Content outline

• Serious injustice - s 21J
• Vulnerability to challenge
  • Serious injustice - unsatisfactory process
  • Pressure/duress
• Pre-nuptial agreements v post-nuptial agreements
• The process of setting aside
• Actionable failure - watch your back
  • Is there an obligation to certify?
  • The lawyer's predicament - the kamikaze client
• Clauses to consifer
• Trusts and s 21/21A
• Section 21H - validation
• Consent orders
• Enforcement