Can You Contract Out of Spousal Maintenance in New Zealand?
This is general information, not legal advice. For guidance on your situation, contact us directly.
We commonly see template relationship property/separation agreements drafted by other law firms that include provisions purporting to contract out of spousal maintenance and/or the Family Proceedings Act 1980.
These provisions may have a deterrent effect if a party has been poorly advised – i.e. the party believes the provision is binding so they do not explore a spousal maintenance claim. However, they are risky.
A court is unlikely to uphold a provision purporting to contract out of spousal maintenance and, in the worst case, the inclusion of such a provision could result in the agreement being set aside.
In this article, we explain what spousal maintenance is, how a court assesses a party’s liability to pay it, and tactics to deal with the issue that are more likely to succeed under New Zealand law.
What is Spousal Maintenance?
Spousal maintenance is a legal obligation that may arise when a marriage, civil union, or de facto relationship ends. Under section 64 of the Family Proceedings Act 1980, one partner may be required to financially support the other if that person cannot reasonably meet their own needs due to circumstances stemming from the relationship.
This is not an automatic entitlement. The Act is clear: maintenance is only payable if two conditions are met:
The applicant cannot meet their reasonable needs.
That inability is caused by relationship-related factors—such as having taken on primary caregiving duties, sacrificing career opportunities, or needing time to retrain or study to become self-sufficient (s 64(2)(a)-(d)).
Importantly, the law promotes independence. As noted in Slater v Slater [1983] NZLR 166, maintenance is intended to be transitional, helping the supported party move toward financial autonomy. The courts assess each case individually, considering factors like:
the division of roles during the relationship (s 64(2)(a)(i)),
childcare responsibilities (s 64(2)(b)),
the standard of living previously enjoyed (s 64(2)(c)),
any education or training being undertaken to improve earning capacity (s 64(2)(d)).
The overarching principle is fairness—not dependency. Maintenance should reflect genuine need and be proportionate to the circumstances. It is not a tool for equalising incomes or lifestyles post-separation, but a safeguard against undue hardship caused by the structure of the relationship itself.
How is Spousal Maintenance calculated?
The purpose of Spousal Maintenance is to help the dependent party meet their reasonable needs for a period following the end of the relationship until they can reasonably be expected to support themselves.
“Reasonable needs” is not an invariant standard, and what is “reasonable” will take into account the standard of living enjoyed during the relationship and the resources of the paying party.
The statute does not prescribe fixed amounts or durations, and precedent offers little guidance; maintenance awards are fact-specific and at the discretion of the court.
While maintenance is generally transitional, courts have awarded support for periods ranging from several months to up to five years, especially where young children or education are involved. The amount is tailored to meet actual needs and may vary significantly depending on the parties’ prior standard of living and earning capacity. In exceptional cases, such as where retraining is prolonged or the disparity in living standards is stark, courts have considered longer or more substantial awards.
Any separation where one party is unlikely to be able to meet their reasonable needs following settlement is potentially subject to a maintenance claim. In cases where one party was very dependent on the other, and the other enjoys a significantly higher post-separation standard of living, spousal maintenance liability can be substantial.
Can you contract out of Spousal Maintenance?
No.
While parties may partially contract out of the Property (Relationships) Act 1976 ; there is no equivalent ability to contract out of the statutory rights to Spousal Maintenance created by the Family Proceedings Act 1980 (Guzman v Osborne [2020] NZFC 1983.
Further, there is contradictory precedent on whether or not it is possible to sever a provision from a separation or contracting out agreement. In Hopkins v Whitehead [2018] NZHC 1996 for example, spousal maintenance provisions in a relationship property agreement were found not to be severable. If provisions are not severable and are found to be invalid this can result in the entire agreement being set aside.
So, what can you do?
Practitioners who dabble in relationship property law often do not understand the potential risks and implications of purporting to contract out of spousal maintenance. The risks of purporting to contract out of spousal maintenance are seldom justified.
However, there are other ways to limit the potential impact of a spousal maintenance claim. One potential technique is to include a clause in a separation agreement whereby the parties acknowledge that the agreement reflects a fair division of relationship property predicated on the understanding that neither party would seek Spousal Maintenance.
A provision to this effect doesn’t purport to contract out of the statutory right to seek Spousal Maintenance but does create some risk for a party advancing a claim for maintenance that the Court could re-examine the division of relationship property in light of the claim.
We are aware of other creative drafting approaches that may be even more effective. However, there is limited precedent in this area, which creates uncertainty and risk, so this is best approached on a case-by-case basis.
At Gordian Legal, we provide expert guidance on separation agreements and relationship property matters, helping you manage maintenance risk with clarity and certainty. Contact us to discuss your situation today.