Among the challenges for the matrimonial bench and bar is the need to become instantly familiar with any type of business and any family situation. Applying the ever-changing New York family law to matters routine and novel is a Herculean task, worthy of Dwayne “the Rock” Johnson’s IMAX 3D movie opening this weekend.
New York’s cosmopolitan population often presents still another layer of law and fact through which our judges must navigate. Four decisions this month reveal the breadth and complexity of those international issues.
In a July 21, 2014 decision in J.R. v. E.M., New York County Supreme Court Justice Ellen Gesmer decided to apply New York law to set aside a marital agreement for its failure to meet New York formalities, although the procedure followed in the Spanish Consulate where it was signed may have been far better able to achieve the goals New York’s formalities were designed to achieve.
On March 3, 2004, the day after they were married in New York City, the parties signed a “Matrimonial Property Agreement” before the Spanish Consul at the Consulate in New York City.
The wife is a Peruvian citizen; her husband is a Spanish citizen. Justice Gesmer noted that both parties are well-educated and accomplished native Spanish-speaking professionals, both currently employed by the United Nations.
After commencing her divorce action in 2013, the wife moved to set aside the marital agreement. She claimed that although the Agreement had been drafted before the parties went to the Consulate, she did not first see it until arriving at the Consulate on March 3, 2004.
In contrast, the Husband claimed that a Spanish “Notaire,” who was also a Consul at the Spanish Consulate, met with the parties upon their arrival at the Consulate and explained to them the various economic regimes that they could elect to govern their marriage by executing a matrimonial agreement, as well as the formalities required for a matrimonial agreement.
According to the affirmation of an experienced Spanish family attorney, under Spanish law one of a Spanish notaire’s “specific functions is to draft the marriage contract and oversee the marriage contract’s proper execution and registry in the Spanish Civil Registry. Spanish consuls are vested with the same power as a notaire.”
The husband further claimed that the parties orally confirmed to the Consul/Notaire that they wished to execute a matrimonial agreement so as to elect the “property separation” regime to govern their marriage. As a result each spouse would have the “ownership, administration, enjoyment and free disposal of property, whether movable or immovable, which belonged to him or her at the time of marrying and of any which he or she may acquire subsequently pursuant to any title.”
The husband claimed that the Consul/Notaire said that it would take a few hours to draft the agreement, so the parties returned a few hours later and each reviewed the Agreement which the Consul/Notaire had drafted in Spanish. The Husband claimed that the Consul/Notaire then read the Agreement aloud to them, that each party confirmed that the terms were correct and acceptable, and that each then executed it. Neither party was represented by counsel in the drafting or execution of the Agreement.
At page one, the Agreement stated, “In the City and State of New York, United States of America, before me, Maria Luisa Huidobro Martin-Laborda, Consul of Spain, acting as a Notary Public, certifies . . . .” The Agreement specifically provided that the parties appeared for the purpose of agreement on a separate property system, in accordance with the provisions of articles 1.315, 1.325 and 1.327 of the Spanish Civil Code.
At the end of the Agreement, each party’s signature appeared, below which it stated, “Before me, Consul,” followed by the signature of M. L. Huidobro. Following that, there was a seal that states: “General Consulate of Spain, New York.” The parties’ marriage was registered with the “Registro Civil del Consulado General de España en Nueva York” on March 5, 2004 by Ms. Huidobro as Civil Registrar and Consul.
Justice Gesmer agreed with the wife’s argument that New York law governed the validity of the Agreement. The fact that the Agreement made specific references to provisions of the Spanish Civil Code did not constitute an agreed-upon choice of law. Here, the parties were married in New York, and the Agreement was drafted, negotiated and executed in New York. From well before the parties signed the Agreement until the present, the parties have resided in New York, and their children have always lived in New York. The parties’ assets all appear to be located in New York, including four apartments. Accordingly, the Court found that New York law applied to determine the validity and enforceability of the Agreement.
Then Justice Gesmer held that this Agreement did not satisfy New York’s formalities as a consular officer is not one of the enumerated persons authorized under New York law to take such acknowledgments. Moreover, the consular office did not constitute a foreign country (if it were, and as the notaire’s certification would have been valid under Spanish law to record a deed, it would have been entitled to recognition in New York.
Since the Court of Appeals has held that the requirement of strict compliance with the formalities called for by the Domestic Relations Law to create a binding matrimonial agreement is an “essential” “bright line rule”, the court is constrained to find that the Agreement is unenforceable because . . . its acknowledgment was not taken by a person authorized to acknowledge the execution of a deed in New York. This result is ironic and unfortunate.
Justice Gesmer noted that the Spanish procedure here followed was more likely than a mere acknowledgment before a notary to achieve the goals of the formalities. Unlike the Spanish procedure, New York’s formalistic requirement of the form of the acknowledgment is not accompanied by any process that ensures that the parties are making an informed choice about these important matters.
In contrast, the requirements of Spanish law, painstakingly followed in this case, ensure that the parties are given a thorough explanation of the alternatives available to them, and the legal implications of the choice they are making. Nonetheless, the court is constrained . . . to invalidate the Agreement.