Vaccination of children – what if one parent doesn’t agree?

Contracting Out Agreements (often referred to as prenuptial agreements) are often viewed quite negatively. They can be seen as having one foot out of the door in a relationship. However, Contracting Out Agreements can be powerful tools to help you and your partner cement your intentions for how your property is dealt with when you die thus preventing a future argument between families. A Contracting Out Agreement is not just for separating couples - it can assist to ensure your wishes are upheld upon death. When you pass away with a Will, your partner has two options; they can chose to follow the terms of your Will pursuant to the Administration Act 1969 (“Administration Act”) or they can make an election under the Property (Relationships) Act 1976 (“PRA”) to have their share of relationship property determined. Why does this matter? This matters because modern relationships are complex. For a multitude of reasons you may not intend to leave your partner 50% of your property upon death. For many of our clients in second relationships, they want to provide for their partner, but they want the majority of their estate to go to their children from their first relationship. The option for partners to elect whether or not to follow your Will, can take control of your property out of your hands leaving what you may see as an unfairness to your children. This is why a Contracting Out Agreement can be such a powerful tool. With a Contracting Out Agreement in place, even if your partner elects a determination for a division of your estate in line with the PRA, they are bound by the terms of the Contracting Out Agreement which determines which assets are in the pool for division and which are out. What does a Contracting Out Agreement do? Under the PRA there is a presumption that upon death or separation your partner is entitled to an equal share of the relationship property. This legislation will apply to you unless you elect to “opt out” by entering into a Contracting Out agreement whereby you and your partner reach your own agreement on what property will be determined separate property and what will be relationship property. Without a Contracting Out agreement relationship property includes: The family home; The household chattels; Vehicles used for family purposes; That share of Kiwisaver or other superannuation policies accrued during the relationship; Your income; and Anything else acquired during the relationship or used for your shared life together. A Contracting Out Agreement is capable in most circumstances of mirroring the terms of your Will. It has the capacity to be very specific. Not only can you dictate which property belongs to which partner and their estate, you can also make special provisions for your partner upon separation or death. An example of this is in circumstances where you want the family home to pass to your children or some other third party upon death, you can still provide your partner with a qualified life interest in the home. You may decide, for example, that you wish for your partner to continue living in the home for a specific period of time (or the rest of their life) but as soon as they move out, start a new relationship, or die, the home will pass to your beneficiaries in accordance with your Will. A Contracting Out Agreement is a flexible tool capable of reflecting your Will. How do we make a Contracting Out Agreement? A Contracting Out Agreement is a binding legal document. Like most legal documents, there are specific procedures that must be followed to make sure your document is enforceable. For your Contracting Out Agreement to be valid and legally enforceable you will need to: Record the agreements reached in writing; Receive independent legal advice; and Have your signing witnessed by a lawyer. You and your partner will need different lawyers. Once you have engaged a lawyer, you can share your intentions for how you want your relationship property to be divided and any specifications for what you want to happen upon death. Lawyers can assist you and your partner to make sure you are both adequately provided for. If you have concerns about how your estate will be distributed when you die, we recommend that you discuss matters with your partner and get some advice. Furthermore if you already have a Will or a Contracting Out Agreement, we recommend that you review the terms of these documents regularly to ensure they still reflect your intentions and your circumstances.Talk to the Holland Beckett Family or Succession and Estates team for more information. This article was first published for First Mortgage Trust newsletter, April 2025.

A testamentary guardian is appointed via a Will or Deed to “step into your shoes” as a parent when you die. A testamentary guardian is not appointed to care for the child. That is something quite different and cannot be provided for in a Will. You can read more about testamentary and court appointed guardians in the Care of Children Act 2004.  When should you appoint a testamentary guardian and what do they do? A testamentary guardian is appointed alongside the surviving parent (usually) for input into “the big important decisions” about a child’s upbringing like education (where do they go to school), health (major medical decisions not day to day bumps and sniffles), religion, residence (which country or region do they live in, not a specific house or street), and permission to marry under the age of 18. These rights and responsibilities end when the child attains the age of 18 years or earlier if the child marries, enters a civil union, or lives with another person as a de facto partner.  Why do it? It is worth considering if you have separated from your child’s other parent to ensure your views about upbringing are represented in the event of your death or if you are worried your family will be “cut off” from the child when you die. If you are still happily in a relationship it is probably not necessary to appoint a testamentary guardian as it is likely you can trust your spouse/partner to make good guardianship decisions for your children if you die. If you are worried about what happens if you both die together then you could each say in your wills that “if we both die together, we appoint X as a guardian.” If you are the sole guardian of your child (the other parent has died already) then you should definitely consider appointing a testamentary guardian.  So, who does care for the kids if we die? The surviving parent would usually remain carer for the child unless unwilling or unable or unsuitable. If you have both died it is assumed that the family will rally around the child to take them in. Whomever they live with (which may be the testamentary guardian if appointed or may not be – there is no default assumption) may then file an application for a parenting order providing them day to day care together with guardianship orders if necessary. A testamentary guardian could apply for a parenting order if they wanted to contest day-to-day care or seek contact rights to the child and as they are already a guardian they would not need the leave of the Court to do so. Before an application for a parenting order can be filed, the guardian will normally have to provide evidence that he or she has sought to resolve the matter with the other guardian/s by family dispute resolution unless the circumstances are urgent. The legal test to determine a child’s care arrangements is “what is in the welfare and best interests of the child” so it depends on all the circumstances at the time.  Things to remember: Only one testamentary guardian can be appointed.  The consent of the person to be appointed as a testamentary guardian is not required.  A person appointed as a testamentary guardian cannot decline the appointment. As a guardian of the child, the appointee could apply to the court for an order for his or her own removal. Another guardian could also apply for removal of the testamentary guardian.  A testamentary guardian has the same rights and responsibilities as the living parent/guardian but only upon the death of the appointor. They have no say in the upbringing of the child prior to that parent’s death.  By appointing a testamentary guardian you are not appointing somebody to care for your child if you die. 

Ashley Jones commenced petitioning for a change in the current dissolution laws after leaving an abusive marriage herself. After waiting two years, Ashley was told she had to locate her husband and organise for him to be served with the paperwork, despite not knowing his whereabouts and a final protection order being in place. This is obviously an upsetting, frustrating and potentially dangerous situation to navigate following an abusive relationship and lengthy wait to formalise the divorce. Previously, under the Family Proceedings Act 1980, an application for an order dissolving a marriage or civil union could only be made if the parties had been living apart for a period of 2 years. Although a one party application could be made, the other party would still need to be served with the paperwork and be given a right to respond. Ashley Jones\' petition to add additional grounds for dissolution for protected persons was successful and an amendment has just been passed into law. The Family Proceedings (Dissolution for Family Violence) Amendment Bill allows family violence survivors with a final protection order in place against their spouse to dissolve their marriage immediately upon a simple application to the Family Court. Under s39A, this Bill not only eliminates the need for parties to wait for 2 years before applying for a dissolution, but also the need for the protected party to serve the other with the application. Upon receipt of the application, providing a protection order is in place, the Registrar of the Family Court may make an order dissolving the marriage or civil union. For the purpose of this Bill, a protection order means: A final protection order under the Family Violence Act 2018; or A protection order: Made under section 123B of the Sentencing Act 2002; and That becomes a final order under section 123G of the Sentencing Act 2002; or A registered foreign protection order. This is good news for victims of family violence. Please reach out to our Family law team for further information.