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Author: Jeremy Johnson
Published: 4 April 2024
Pages: 21

Introduction

This paper addresses agreements made under s 21 of the Property (Relationships) Act 1976 (PRA), known as “contracting out agreements” or colloquially as “pre-nups”. Section 21 agreements are important in a rural context as frequently the size of property held between partners is significant and often largely inherited. As such a pre-nuptial agreement is often necessary and always beneficial.

This paper will delve into two particular areas. Firstly, it will address the general background to s 21 agreements:

• what s 21 agreements are;
• what the legal requirements for a s 21 agreement are; and
• relevant case law regarding the setting aside of s 21 agreements.

Secondly, it outlines the risk factors where disputes related to s 21 agreements are most likely to arise in a rural law context. These include:

a. the treatment of homestead blocks;
b. informal concessions;
c. issues relating to internal family loan agreements;
d. developing unfairness e.g. due to long-term unrealised capital gains;
e. claims made under s 15 and s 15A of the PRA;
f. claims made under the Family Proceedings Act s 182; and
g. the handling of maintenance claims.

Content outline

• Pre-nuptial agreements
• Property (Relationships) Act 1976
• Section 21 agreements legal requirements
• Potential risk factor