Marriage of Clarke & Akel

Filed 1/24/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of MATTHEW W. CLARKE and CLAUDIA G. AKEL.

MATTHEW W. CLARKE, Respondent, A149052 v. (San Mateo County CLAUDIA G. AKEL, Super. Ct. No. FAM0120913) Appellant.

Under Family Code section 1615, subdivision (c)(2), 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. (In re Marriage of Hill and Dittmer (2011) 202 Cal.App.4th 1046, 1055 (Hill); In re Marriage of Caldwell-Faso & Faso (2011) 191 Cal.App.4th 945, 949 (Caldwell-Faso).) Evidence Code section 622 provides that the facts recited in a written instrument, other than the recital of a consideration, “are conclusively presumed to be true as between the parties thereto[.]” We conclude that when the evidence shows an unrepresented party to a premarital agreement was not provided with the seven-day period for review required by Family Code section 1615, subdivision (c)(2), the agreement’s recitation that the review period was provided is not binding. In other words, the seven-day review period may not be circumvented by inserting language into a premarital agreement acknowledging that both sides had seven days to review the agreement, when in fact they did not. We also

1

conclude that Family Code section 1615, subdivision (c)(3), which requires a written advisement and waiver of an unrepresented party’s rights under a premarital agreement, applies to an agreement that was initially generated by the unrepresented party. We therefore affirm the trial court’s order determining the premarital agreement in this case to be unenforceable. I. BACKGROUND Respondent Matthew Clarke (Matthew) and appellant Claudia Akel (Claudia)1 became engaged to be married and set a wedding date of March 7, 2008. On February 26, 2008, Mathew downloaded a form from Nolo Press and used it as a basis for a draft premarital agreement, which he emailed to Claudia. Among other things, and as relevant here, the draft agreement provided that Matthew owned the real property at 538 Palomar Drive, that the property would continue to be Matthew’s separate property after the marriage, that the property would become community property “after 7 years of marriage,” that Claudia would own a two-percent interest in the property for every year they were married if the couple divorced before seven years of marriage, and that “Claudia and any children will have lifetime tenancy in the house.” Matthew retained attorney Clifford Chernick to represent Claudia in the negotiation and execution of the premarital agreement. Matthew did not believe he needed an attorney himself and never sought the advice of an attorney regarding the agreement. On February 29, 2008, Mathew emailed a copy of the draft premarital agreement to Chernick’s office. On March 3, 2008, Matthew emailed a revised draft of the agreement to Chernick’s office, which contained the same provisions regarding 538 Palomar Drive as the original draft. Chernick reviewed the drafts and made some notes regarding questions he had. Attorney Chernick met with Claudia and Matthew in person on March 4, 2008. Chernick advised Matthew he should seek independent legal counsel, but Matthew told