Recent Developments in Family Law: Evidence Code Section 622 Can’t Be Used to Circumvent the Requirements of Family Code Section 1615

in Family Law by Stephanie Blum

In In re Marriage of Clarke & Akel (2018) 2018 Cal.App. LEXIS 57, the First Appellate District, Division Five, confronted a potential conflict between Family Code Section 1615 and Evidence Code Section 622. Family Code Section 1615(c)(2) states that a premarital agreement is unenforceable as to a party who was not represented by counsel and who did not have at least seven calendar days between the date he or she was first presented with the agreement and the date it was signed. Evidence Code Section 622 provides that the facts recited in a written instrument are “…conclusively presumed to be true as between the parties thereto.”

In In re Marriage of Clarke & Akel, the Court of Appeal held that the seven-day review period mandated by the Family Code cannot be circumvented by inserting language into a premarital agreement acknowledging that both parties had seven days to review the agreement, when in fact they did not. In this case, the husband, Matthew, drafted a premarital agreement which he emailed to his soon-to-be wife, Claudia. Matthew then retained an attorney to represent Claudia in the negotiation and execution of the premarital agreement. He did not retain an attorney for himself. The couple’s wedding date was set for March 7, 2008. On March 5, 2008, the attorney revised the agreement and sent a version to both Matthew and Claudia. This agreement claimed that each party had more than seven days to review the premarital agreement before executing it. The couple signed the final version of the agreement on March 6, 2008.

The parties separated and Claudia sought to enforce the premarital agreement, which had given her lifetime tenancy at the couple’s marital home. Matthew argued that he did not enter the premarital agreement “voluntarily” under the terms of Family Code Section 1615 because he did not have at least seven days to review the agreement. The burden is on the party seeking enforcement to prove that the agreement was voluntary. Claudia argued that because the agreement stated that each party had at least seven days to review the agreement, Evidence Code Section 662 mandated that the text be taken as true. The court did not agree. According to Section 1615, a premarital agreement is involuntary, and thus invalid, when an unrepresented party has had fewer than seven days to review the agreement. Section 662 applies only to valid contracts. Therefore, Claudia did not prove that the agreement was entered into voluntarily. The court stated that the policy behind the seven day rule was to protect parties who enter into premarital agreements without legal representation, and this policy would be violated if the rule could followed by including boilerplate language that did not reflect the true facts.