Is a Prenuptial Agreement a "living document"?

Question

I had a "Property (Contracting Out) Agreement" (Prenup) drawn about the time I got married many years ago.

Recent life events require that I revisit my financial affairs (not related to my Marriage), and my Lawyer advised that a Prenup is a "Living Document" and should be reviewed. He persisted with this view - possibly for reasons I don't grasp - even when I advised him I really do not want to review the Prenup "and that it is what it is" (because it will put unnecessary stress on my relationship, and because I can't see what revisiting it achieves and it would be a point of pain in my relationship).

My lawyers advice about it being a living document sounds wrong and feels like the lawyer is just trying to up their billables at my expense without having my interests forefront - which would be a concerning development. Is his advice that a Prenup is a living document correct?

(I live in New Zealand - not sure if that makes any difference)

Answer 1

Sounds like you aren't sharing the same definition of living document

A prenup is simply a contract, and most contracts are "fixed" at the time of their formation: the rights and obligations of each party are defined for all time (or for as long as the contract lasts). This is not what I and I suspect you, would understand to be a living document.

However, some contracts contain terms that allow their terms to be varied - either by agreement or unilaterally. That sort of contract would be a living document.

Notwithstanding, any contract can be varied or replaced with a new contract until by agreement of all parties as long as the contract is still on foot. Your lawyer may be thinking of the prenup in this way, and, at a stretch, that would make it a living document.

Your lawyer's advice is sound - your circumstances have changed, and you should at least look at the prenup to decide if you are still happy with its terms in light of your new circumstances. That's a review.

It most definitely "is what it is", but if "what it is" doesn't suit your relationship's current status, you can, with the agreement of your partner, change "what it is". Without reviewing it, you can't make an informed decision if the current agreement even makes sense in the light of the present. It may be that you're perfectly happy with "what it is", or that you're unhappy but trying to change it would make you more unhappy, or that discussing it like adults with your partner and deciding to change or not change is a good or bad idea. But you can't know unless you do the review first.

Answer 2

Is his advice that a Prenup is a living document correct?

In a sense. It's a smart advice of a salesperson.

With or without a lawyer, you need to understand if the existing prenup still works for you.

Steps to get that understanding:

1. Read the existing prenup, make sure you understand every fancy legal term used in it and how it applied to you at the time it was written.

2. Identify the differences in your current situation to what it was back then.

3. Figure if the prenup still works for you now. If not, figure how would you like to change it, and whether your partner would agree.

You would need a lawyer only if:

• You can't do the above on your own; or
• You can, and you realise that you actually want to make changes to the prenup. These would need to comply with s 21F of the Property (Relationships) Act 1976.