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Family Proceedings Act 1980

Miscellaneous provisions

185: Separation agreements by persons of unsound mind

You could also call this:

"Agreements when one person is not able to make decisions for themselves"

Illustration for Family Proceedings Act 1980

You can make a separation agreement even if one party has an unsound mind. A Family Court Judge must approve the agreement on their behalf first. The Judge will only approve it if they think the person understands what the agreement means. You need a Family Court Judge to approve the agreement before it is made. The person who is making the agreement must apply to the Judge for approval. The Judge can ask someone else, like a solicitor or Public Trust, to look at the application and give their opinion. The person looking at the application can write a report and make recommendations. They can also talk to the Judge about the application. But they will not do anything until they get paid for their work. If you want to make a separation agreement and one party has an unsound mind, you must follow these steps. The Family Court Judge will make sure the agreement is fair and that the person understands it. You can find more information about the Public Trust Act 2001 on the legislation website.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM42202.

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Part 11Miscellaneous provisions

185Separation agreements by persons of unsound mind

  1. Notwithstanding anything in any enactment or rule of law, no agreement for separation shall be void or voidable by reason of either party to the agreement being of unsound mind, if, before the agreement is entered into by that party, it has been approved under this section on behalf of that party by a Family Court Judge.

  2. The Family Court Judge shall not approve a separation agreement under this section unless the Family Court Judge is satisfied that the person on whose behalf it is to be approved is able to understand the nature and consequences of the agreement.

  3. An application under this section shall be made by the person on whose behalf the agreement is to be approved.

  4. The Family Court Judge may refer the application to a solicitor nominated by the Family Court Judge, or to Public Trust or the Maori Trustee, or to any other person, and may order the applicant to pay the reasonable costs and expenses of any person to whom the application is so referred.

  5. A person to whom the application is so referred may—

  6. file a report in the District Court setting out the results of that person's consideration and examination of the application, and making in respect of it such recommendations as that person thinks proper; and
    1. appear and be heard at the hearing of the application—
        1. but no such person shall be under any obligation to consider or examine any such application until that person's reasonable costs and expenses have been paid or secured to that person's satisfaction.

      Notes
      • Section 185(4): amended, on , by section 170(1) of the Public Trust Act 2001 (2001 No 100).