Section 21F and why each partner needs their own lawyer
Updated 2026-08-09. General information, not legal advice.
Section 21F of the Property (Relationships) Act 1976 is the reason a New Zealand prenup involves two lawyers. It makes a contracting out agreement void unless four requirements are met: the agreement is in writing and signed by both partners; each partner receives independent legal advice before signing; each signature is witnessed by a lawyer; and that lawyer certifies that, before the partner signed, the lawyer explained the effect and implications of the agreement. Miss any one of them and there is no agreement, however carefully it was drafted.
Why does the law force us to use two lawyers?
Because a contracting out agreement removes rights. Parliament's bargain is: couples may replace the Act's protections with their own rules, provided each partner demonstrably understood what they were giving up, advised by someone whose only duty was to them. "Independent" means exactly that: your lawyer cannot also act for your partner, and a single shared adviser voids the agreement. The requirement protects the agreement as much as the partners, because a certified agreement is very hard to attack with "I did not understand it".
What happens in the advice session?
Your lawyer reads the draft against your disclosure, then explains what you would be entitled to under the Act with no agreement, what the agreement gives you instead, and the difference, in both the separation and death scenarios. Expect direct questions about pressure and timing, and expect pushback if terms are one-sided: a lawyer who believes the deal is seriously unfair to you will say so, and may recommend changes before certifying. That is the system working, not an obstacle.
When both partners have been advised and any changes are settled, each lawyer witnesses their client's signature and signs the certificate. The certificates are part of the agreement's validity, not filing paperwork.
What does section 21F mean for cost and timing?
Two advice sessions are a structural part of the cost of a prenup, and they are also why an agreement cannot be signed in an afternoon. Build in time for each lawyer to review properly, especially if trusts or businesses are involved, and never schedule signing against a deadline like a wedding: rushed advice is the seed of a later challenge. A sensible sequence is settled terms first, lawyers engaged weeks ahead, certification done with time to spare.
Can a defective agreement be rescued?
The Act contains a narrow judicial power to give effect to an agreement that misses the formalities where the non-compliance has not materially prejudiced anyone, and courts have used it for genuine technicalities. But it is discretionary, uncertain and litigated, the opposite of what an agreement is for. Treat section 21F as absolute and get the formalities right the first time.
Common questions
- Can my partner and I use the same lawyer for our prenup?
- No. Section 21F requires each partner to receive independent legal advice, which means separate lawyers. An agreement advised by one lawyer for both partners is void.
- What must the lawyer's certificate say?
- In substance, that before the partner signed, the lawyer explained the effect and implications of the agreement to them. The lawyer also witnesses the signature. Both certificates must exist for the agreement to be valid.
- Can the advice be done remotely?
- Advice can practically be given by video, but witnessing and certification have formal requirements your lawyer will manage. Tell both lawyers early if either partner is overseas so the signing process is set up correctly.
- Is independent legal advice needed to update an agreement?
- Yes. A variation or replacement agreement goes through the same formalities as the original: independent advice for each partner, witnessing and certification. Informal amendments have no effect.
Sources
All information published on prenup.nz, including this guide, is general information only and is not to be construed as legal advice. We strongly recommend seeking independent legal advice about your own situation. A contracting out agreement only binds you once each partner has taken independent legal advice and a lawyer has witnessed and certified each signature, as section 21F of the Property (Relationships) Act 1976 requires.