The second of four decisions this month with an international flavor was also decided by New York County Supreme Court Justice Ellen Gesmer.
In M v. M, 2014 N.Y.Misc. Lexis 3201, decided July 3, 2014, Justice Gesmer again voided a marital agreement, this time applying the laws of Spain and the Dominican Republic.
On June 27, 2001, one year and five months before their marriage, the parties signed an Agreement in Madrid, Spain, that purported to govern the disposition of property in the event of marriage and divorce. As with the Agreement in J.R. (see yesterday’s blog post), it provided that the parties would marry in a system of absolute separation of property.
At the time of the Agreement, the wife, born in the Dominican Republic, had Italian citizenship and was a domiciliary of Spain. The Husband is a citizen of Spain.
The parties were married in the Dominican Republic on December 12, 2002. Their marriage certificate, and the certification issued by the Office of Vital Statistics from the local government district, so listed the husband as a Spanish citizen, domiciled in Spain, and the wife as an Italian citizen, domiciled in Spain.
The wife commenced this divorce action in New York in 2012. Seeking now to invalidate the Agreement, the wife alleged that she never read the Agreement before signing it, that no one else read it to her, and that no formalities, particularly an oral recitation of the Agreement, were conducted when it was signed. She claimed that the husband brought her to the office of his attorney, and asked her to sign an accounting document drafted by his attorney to help him protect assets from business dealings. She claimed she never saw the document before the evening she signed it, and never saw or discussed it with the husband again until he raised it after commencement of this action. The husband disputed the wife’s claimed lack of awareness of the contents and significance of the Agreement.
It was undisputed, however, that the parties married more than one year after signing the Agreement, and that the Agreement was never registered in Spain where it was signed, nor in the Dominican Republic where the parties married. Indeed, neither the marriage certificate, nor the Vital Statistics Certificate made any reference to the Agreement. Instead, the Vital Statistics Certificate specified that the parties were married under a Legal Community Of Goods regime, rather than the system of absolute separation of property recited in the Agreement.
Justice Gesmer held that Spanish law applied. The Court found that the material and relevant contacts between the Agreement and New York did not outweigh those with Spain. Here, there was no dispute but that the Agreement was drafted, negotiated and executed in Spain. Furthermore, at the time the parties signed the Agreement, they lived in Spain, a country of which the husband is a citizen, and to which he returned after the parties separated. It was also clear that most of the parties’ assets, with the exception of an apartment, were outside of New York, and that the majority of them were in Spain. Therefore, the Court looked to Spanish law with respect to its validity.
Justice Gesmer found that the Agreement was invalid under Spanish law for two reasons. The Spanish Civil Code provides that anything stipulated in a marital agreement is ineffective if the marriage does not take place within one year of the execution of the agreement. Second, the Spanish Civil Code also requires that in order to be effective, prenuptial agreements must be recorded with the Civil Registry in the place where the marriage occurs. That was not done here.
Furthermore, under the Civil Code of the Dominican Republic, if parties to a prenuptial agreement have chosen a different matrimonial property regime than that of community property, they must submit the duly executed prenuptial agreement to the Office of Vital Statistics before the marriage is performed, and the prenuptial agreement must also be registered in the Dominican Republic. As it was undisputed that these steps were not taken, and the Vital Statistics Certificate provided that the parties were married under the Legal Community of Goods regime, it was also clear that the Agreement is invalid under Dominican law.
Accordingly, Justice Gesmer granted the wife’s motion and found the Agreement void by operation of law.