You're getting married! The legal "to do" list

Introduction

On 17 April 2013 the New Zealand Parliament passed the Marriage (Definition of Marriage) Amendment Bill giving same-sex couples the right to marry. The result of this is that all couples, regardless of gender, now have the right to marry to express their commitment to each other. 

Getting married or entering into a civil union is an exciting and life-changing experience and it is important to think about the effect marriage or civil union will have on your legal affairs. 

Your will

Many people do not realise that if you have a current will, your will is automatically cancelled when you get married or enter in to a civil union. 

There is an exception to this under the Wills Act 

2007, if your will is “made in contemplation” of marriage or civil union. This means that if you want to create a will before you get married or enter a civil union, it needs to be made near the time of your marriage or civil union. 

Your lawyer can advise you on the wording required to make a will in contemplation. 

What happens if your will is void or you have no will?

As mentioned above, a will which is not made in contemplation of marriage or civil union will become invalid when you marry/enter into a civil union. An invalid will is the same as having no will and if you die, you would be treated as having died “intestate” (which means dying without a will). 

Where a person dies intestate, the Administration Act 1969 will apply. This Act has rules that apply by default for how a person’s assets are to be divided where that person does not have a will. Usually this will mean that the spouse or partner will have to apply to the High Court for Letters of Administration, which is the authority needed to deal with the deceased person’s estate. 

To avoid conflict and ensure your assets are dealt with in accordance with your wishes, it is important to think about creating or updating your will. 

Property (Relationships) Act

The Property (Relationships) Act 1976 sets out how assets are blended and divided between people in a relationship. 

Generally, where a couple are married, in a civil union or de facto relationship, the Act says that all property they own, unless they specify otherwise, is to be shared 50/50 in the event of a separation or death. 

If you are in a relationship and you have assets which you believe should be/stay “yours”, then you and your spouse/partner can enter in to an agreement setting out that the Act does not apply to your assets. Please note that both you and your spouse/partner must have independent legal advice for such an agreement to be legally binding. 

Another option to protect assets is to transfer assets to a family trust (see below), but this generally needs to be done in advance of the relationship starting and it is best to do this in conjunction with the agreement as set out above.

PLEASE NOTE: You do not need to be married or in the civil union for this Act to apply – it can apply to couples who live together or not, in many varied and wide situations. Talk to your lawyer if you have concerns about how this Act might affect you. 

Blended families

As lawyers, we find that disputes often arise in the case of subsequent marriages where there are children from a previous relationship. 

Every situation is unique, but if you are entering in to marriage or civil union and you have children from a previous relationship, you will need to think carefully about how to balance the interests of your children and your new spouse or partner. 

Family trusts

Family trusts are often used by individuals or couples as a mechanism to protect assets for children in future. The benefits of a family trust are numerous and the suitability of a trust will depend on your particular circumstances. 

Problems can arise where a couple separates due to a relationship break down and the bulk of their assets are held by the trustees of a family trust. As the trustees hold assets in a trustee capacity, the couple as trustees may have to continue to co- operate as trustees. 

If you have a family trust, it is important to think about how your trust is structured to deal with future changes and whether it is appropriate for your current relationship. 

Enduring powers of attorney 

You and your future spouse or partner might also want to think about appointing attorneys to look after your property and welfare matters, if you become unable to do so. 

There are two types of attorney that are able to be appointed:

• An attorney(s) to act for you in relation to your property (land, bank accounts, shares, investments - anything you own in your personal name); and 
• An attorney to act for you in relation to your personal care and welfare matters (to make decisions about your medical care, health and wellbeing) if you lack mental capacity to make those decisions for yourself. 

Often spouses or partners appoint each other, with alternative attorneys, to deal with these types of matters should one of them lose capacity. 

Conclusion

Every person’s individual situation differs, but it is important to think about how your legal matters will affect your future spouse or partner. In order to enjoy your “big day” free of worry, we recommend you talk to your lawyer first. 

If you would like further information please contact Amanda Hockley on 07 958 7451.