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CALIFORNIA FAMILY
LAW CODE REFERENCE
CALIFORNIA FAMILY CODE SECTION 297.5
297.5. (a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses.
(b) Former registered domestic partners shall have the same
rights, protections, and benefits, and shall be subject to the
same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon former spouses.
(c) A surviving registered domestic partner, following the death
of the other partner, shall have the same rights, protections,
and
benefits, and shall be subject to the same responsibilities,
obligations, and duties under law, whether they derive from statutes,
administrative regulations, court rules, government policies, common
law, or any other provisions or sources of law, as are granted
to
and imposed upon a widow or a widower.
(d) The rights and obligations of registered domestic partners
with respect to a child of either of them shall be the same as
those
of spouses. The rights and obligations of former or surviving
registered domestic partners with respect to a child of either
of
them shall be the same as those of former or surviving spouses.
(e) To the extent that provisions of California law adopt, refer
to, or rely upon, provisions of federal law in a way that otherwise
would cause registered domestic partners to be treated differently
than spouses, registered domestic partners shall be treated by
California law as if federal law recognized a domestic partnership
in
the same manner as California law.
(f) Registered domestic partners shall have the same rights
regarding nondiscrimination as those provided to spouses.
(g) Notwithstanding this section, in filing their state income
tax
returns, domestic partners shall use the same filing status as
is
used on their federal income tax returns, or that would have been
used had they filed federal income tax returns. Earned income may
not be treated as community property for state income tax purposes.
(h) No public agency in this state may discriminate against any
person or couple on the ground that the person is a registered
domestic partner rather than a spouse or that the couple are
registered domestic partners rather than spouses, except that nothing
in this section applies to modify eligibility for long-term care
plans pursuant to Chapter 15 (commencing with Section 21660) of
Part
3 of Division 5 of Title 2 of the Government Code.
(i) This act does not preclude any state or local agency from
exercising its regulatory authority to implement statutes providing
rights to, or imposing responsibilities upon, domestic partners.
(j) This section does not amend or modify any provision of the
California Constitution or any provision of any statute that was
adopted by initiative.
(k) This section does not amend or modify federal laws or the
benefits, protections, and responsibilities provided by those laws.
(l) Where necessary to implement the rights of registered domestic
partners under this act, gender-specific terms referring to spouses
shall be construed to include domestic partners.
(m) (1) For purposes of the statutes, administrative regulations,
court rules, government policies, common law, and any other provision
or source of law governing the rights, protections, and benefits,
and the responsibilities, obligations, and duties of registered
domestic partners in this state, as effectuated by this section,
with
respect to community property, mutual responsibility for debts
to
third parties, the right in particular circumstances of either
partner to seek financial support from the other following the
dissolution of the partnership, and other rights and duties as
between the partners concerning ownership of property, any reference
to the date of a marriage shall be deemed to refer to the date
of
registration of a domestic partnership with the state.
(2) Notwithstanding paragraph (1), for domestic partnerships
registered with the state before January 1, 2005, an agreement
between the domestic partners that the partners intend to be governed
by the requirements set forth in Sections 1600 to 1620, inclusive,
and which complies with those sections, except for the agreement's
effective date, shall be enforceable as provided by Sections 1600
to
1620, inclusive, if that agreement was fully executed and in force
as
of June 30, 2005.
CALIFORNIA FAMILY CODE SECTION 721
721 (a) Subject to subdivision (b), either husband or wife may
enter into any transaction with the other, or with any other person,
respecting property, which either might if unmarried.
(b) Except as provided in Sections 143, 144, 146, 16040, and
16047
of the Probate Code, in transactions between themselves, a husband
and wife are subject to the general rules governing fiduciary
relationships which control the actions of persons occupying
confidential relations with each other. This confidential
relationship imposes a duty of the highest good faith and fair
dealing on each spouse, and neither shall take any unfair advantage
of the other. This confidential relationship is a fiduciary
relationship subject to the same rights and duties of nonmarital
business partners, as provided in Sections 16403, 16404, and 16503
of
the Corporations Code, including, but not limited to, the following:
(1) Providing each spouse access at all times to any books kept
regarding a transaction for the purposes of inspection and copying.
(2) Rendering upon request, true and full information of all
things affecting any transaction which concerns the community
property. Nothing in this section is intended to impose a duty
for
either spouse to keep detailed books and records of community
property transactions.
(3) Accounting to the spouse, and holding as a trustee, any
benefit or profit derived from any transaction by one spouse without
the consent of the other spouse which concerns the community
property.
CALIFORNIA FAMILY CODE SECTION 1100
1100. (a) Except as provided in subdivisions (b), (c), and (d)
and
Sections 761 and 1103, either spouse has the management and control
of the community personal property, whether acquired prior to or
on
or after January 1, 1975, with like absolute power of disposition,
other than testamentary, as the spouse has of the separate estate
of
the spouse.
(b) A spouse may not make a gift of community personal property,
or dispose of community personal property for less than fair and
reasonable value, without the written consent of the other spouse.
This subdivision does not apply to gifts mutually given by both
spouses to third parties and to gifts given by one spouse to the
other spouse.
(c) A spouse may not sell, convey, or encumber community personal
property used as the family dwelling, or the furniture, furnishings,
or fittings of the home, or the clothing or wearing apparel of
the
other spouse or minor children which is community personal property,
without the written consent of the other spouse.
(d) Except as provided in subdivisions (b) and (c), and in Section
1102, a spouse who is operating or managing a business or an
interest in a business that is all or substantially all community
personal property has the primary management and control of the
business or interest. Primary management and control means that
the
managing spouse may act alone in all transactions but shall give
prior written notice to the other spouse of any sale, lease,
exchange, encumbrance, or other disposition of all or substantially
all of the personal property used in the operation of the business
(including personal property used for agricultural purposes), whether
or not title to that property is held in the name of only one
spouse. Written notice is not, however, required when prohibited
by
the law otherwise applicable to the transaction.
Remedies for the failure by a managing spouse to give prior
written notice as required by this subdivision are only as specified
in Section 1101. A failure to give prior written notice shall not
adversely affect the validity of a transaction nor of any interest
transferred.
(e) Each spouse shall act with respect to the other spouse in
the
management and control of the community assets and liabilities
in
accordance with the general rules governing fiduciary relationships
which control the actions of persons having relationships of personal
confidence as specified in Section 721, until such time as the
assets and liabilities have been divided by the parties or by a
court. This duty includes the obligation to make full disclosure
to
the other spouse of all material facts and information regarding
the
existence, characterization, and valuation of all assets in which
the
community has or may have an interest and debts for which the
community is or may be liable, and to provide equal access to all
information, records, and books that pertain to the value and
character of those assets and debts, upon request.
CALIFORNIA FAMILY CODE SECTIONS 1612
1612. (a) Parties to a premarital agreement may contract with
respect to all of the following:
(1) The rights and obligations of each of the parties in any
of
the property of either or both of them whenever and wherever acquired
or located.
(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
property.
(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
event.
(4) The making of a will, trust, or other arrangement to carry
out
the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit
from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
(b) The right of a child to support may not be adversely affected
by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal
support, including, but not limited to, a waiver of it, is not
enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent
counsel at the time the agreement containing the provision was
signed, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise
unenforceable provision in a premarital agreement regarding spousal
support may not become enforceable solely because the party against
whom enforcement is sought was represented by independent counsel.
CALIFORNIA FAMILY CODE SECTIONS 1615
1615. (a) A premarital agreement is not enforceable if the party
against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
before execution of the agreement, all of the following applied
to
that party:
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
party.
(B) That party did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had,
an
adequate knowledge of the property or financial obligations of
the
other party.
(b) An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that
a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented
by independent legal counsel at the time of signing the agreement
or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
counsel.
(2) The party against whom enforcement is sought had not less
than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel
and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she
was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party's rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received
the
information required by this paragraph and indicating who provided
that information.
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into
the
agreement.
(5) Any other factors the court deems relevant.
CALIFORNIA FAMILY CODE SECTIONS 1600-1617
1600. This chapter may be cited as the Uniform Premarital Agreement
Act.
1601. This chapter is effective on and after January 1, 1986,
and
applies to any premarital agreement executed on or after that date.
1610. As used in this chapter:
(a) "Premarital agreement" means an agreement between
prospective
spouses made in contemplation of marriage and to be effective upon
marriage.
(b) "Property" means an interest, present or future,
legal or
equitable, vested or contingent, in real or personal property,
including income and earnings.
1611. A premarital agreement shall be in writing and signed by
both
parties. It is enforceable without consideration.
1612. (a) Parties to a premarital agreement may contract with
respect to all of the following:
(1) The rights and obligations of each of the parties in any
of
the property of either or both of them whenever and wherever acquired
or located.
(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
property.
(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
event.
(4) The making of a will, trust, or other arrangement to carry
out
the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit
from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
(b) The right of a child to support may not be adversely affected
by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal
support, including, but not limited to, a waiver of it, is not
enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent
counsel at the time the agreement containing the provision was
signed, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise
unenforceable provision in a premarital agreement regarding spousal
support may not become enforceable solely because the party against
whom enforcement is sought was represented by independent counsel.
1613. A premarital agreement becomes effective upon marriage.
1614. After marriage, a premarital agreement may be amended or
revoked only by a written agreement signed by the parties. The
amended agreement or the revocation is enforceable without
consideration.
1615. (a) A premarital agreement is not enforceable if the party
against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
before execution of the agreement, all of the following applied
to
that party:
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
party.
(B) That party did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had,
an
adequate knowledge of the property or financial obligations of
the
other party.
(b) An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that
a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented
by independent legal counsel at the time of signing the agreement
or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
counsel.
(2) The party against whom enforcement is sought had not less
than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel
and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she
was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party's rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received
the
information required by this paragraph and indicating who provided
that information.
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into
the
agreement.
(5) Any other factors the court deems relevant.
1616. If a marriage is determined to be void, an agreement that
would otherwise have been a premarital agreement is enforceable
only
to the extent necessary to avoid an inequitable result.
1617. Any statute of limitations applicable to an action asserting
a claim for relief under a premarital agreement is tolled during
the
marriage of the parties to the agreement. However, equitable
defenses limiting the time for enforcement, including laches and
estoppel, are available to either party.
In re Marriage of Bonds (2000) 24 Cal.4th 1 , 99 Cal.Rptr.2d 252;
5 P.3d 815 [No. S079760. Aug. 21, 2000.]
In re the Marriage of SUSANN MARGRETH BONDS and BARRY LAMAR BONDS.
SUSANN MARGRETH BONDS, Appellant, v. BARRY LAMAR BONDS, Respondent.
(Superior Court of San Mateo County, No. F-19162, Judith W. Kozloski,
Judge.)
(The Court of Appeal, First Dist., Div. Two, Nos. A075328 and
A076586.)
(Opinion by George, C. J., expressing the unanimous view of the
court.)
COUNSEL
Fancher & Wickland, Paige Leslie Wickland, Paula Conser Fancher,
Anne E. Thorkelson; Law Offices of Lawrence H. Stotter and Lawrence
H. Stotter for Appellant.
Chern & Brenneman and Gertrude D. Chern as Amici Curiae on
behalf of Appellant.
De Goff and Sherman, Richard Sherman, Victoria J. De Goff; Robert
J. Nachshin; Scott N. Weston; and Stephen J. Montalvo for Respondent.
Haight, Brown & Bonesteel, Roy G. Weatherup and Jennifer K.
Saunders for Certain Underwriters at Lloyds of London as Amicus
Curiae on behalf of Respondent. [24 Cal.4th 6]
OPINION
GEORGE, C. J.-
In this case we consider whether appellant Susann (known as Sun)
Margreth Bonds voluntarily entered into a premarital agreement
with respondent Barry Lamar Bonds. We conclude that the Court of
Appeal erred in determining that because Sun, unlike Barry, was
not represented by independent counsel when she entered into the
agreement, the voluntariness of the agreement must be subjected
to strict scrutiny. Instead, we determine that the circumstance
that one of the parties was not represented by independent counsel
is only one of several factors that must be considered in determining
whether a premarital agreement was entered into voluntarily. Further,
as we shall explain, we conclude that substantial evidence supports
the determination of the trial court that the agreement in the
present case was entered into voluntarily.
I
Sun and Barry met in Montreal in the summer of 1987 and maintained
a relationship during ensuing months through telephone contacts.
In October 1987, at Barry's invitation, Sun visited him for 10
days at his home in Phoenix, Arizona. In November 1987, Sun moved
to Phoenix to take up residence with Barry and, one week later,
the two became engaged to be married. In January 1988, they decided
to marry before the commencement of professional baseball's spring
training. On February 5, 1988, in Phoenix, the parties entered
into a written premarital agreement in which each party waived
any interest in the earnings and acquisitions of the other party
during marriage. fn. 1 That same day, they flew to Las Vegas, and
were married the following day.
Each of the parties then was 23 years of age. Barry, who had attended
college for three years and who had begun his career in professional
baseball in 1985, had a contract to play for the Pittsburgh Pirates.
His annual salary at the time of the marriage ceremony was approximately
$106,000. Sun had emigrated to Canada from Sweden in 1985, had
worked as a waitress and bartender, and had undertaken some training
as a cosmetologist, having [24 Cal.4th 7] expressed an interest
in embarking upon a career as a makeup artist for celebrity clients.
Although her native language was Swedish, she had used both French
and English in her employment, education, and personal relationships
when she lived in Canada. She was unemployed at the time she entered
into the premarital agreement.
Barry petitioned for legal separation on May 27, 1994, in California,
the parties then being California residents. Sun requested custody
of the parties' two children, then three and four years of age.
In addition, she sought child and spousal support, attorney fees,
and a determination of property rights. The petition was amended
to request dissolution, and the court bifurcated the trial proceedings,
first adjudicating the issue of the validity of the premarital
agreement and then reaching the remaining issues involving application
of the agreement to the property held by the parties and the determination
of spousal and child support. Child support was awarded in the
amount of $10,000 per month per child. Spousal support was awarded
in the amount of $10,000 per month, to terminate December 30, 1998.
Only the first issue —the validity of the premarital agreement—is
before this court.
Barry testified that he was aware of teammates and other persons
who had undergone bitter marital dissolution proceedings involving
the division of property, and recalled that from the beginning
of his relationship with Sun he told her that he believed his earnings
and acquisitions during marriage should be his own. He informed
her he would not marry without a premarital agreement, and she
had no objection. He also recalled that from the beginning of the
relationship, Sun agreed that their earnings and acquisitions should
be separate, saying "what's mine is mine, what's yours is
yours." Indeed, she informed him that this was the practice
with respect to marital property in Sweden. She stated that she
planned to pursue a career and wished to be financially independent.
Sun knew that Barry did not anticipate that she would shoulder
her living expenses while she was not employed. She was not, in
fact, employed during the marriage. Barry testified that he and
Sun had no difficulty communicating.
Although Barry testified that he had previous experience working
with lawyers in the course of baseball contract negotiations and
the purchase of real property, his testimony at trial did not demonstrate
an understanding of the legal fine points of the agreement.
Sun's testimony at trial differed from Barry's in material respects.
She testified that her English language skills in 1987 and 1988
were limited. Out of pride, she did not disclose to Barry that
she often did not understand him. She testified that she and Barry
never discussed money or property during [24 Cal.4th 8] the relationship
that preceded their marriage. She agreed that she had expressed
interest in a career as a cosmetologist and had said she wished
to be financially independent. She had very few assets when she
took up residence with Barry, and he paid for all their needs.
Their wedding arrangements were very informal, with no written
invitations or caterer, and only Barry's parents and a couple of
friends, including Barry's godfather Willie Mays, were invited
to attend. No marriage license or venue had been arranged in advance
of their arrival in Las Vegas.
Several persons testified as to the circumstances surrounding
the signing of the premarital agreement.
Sun testified that on the evening before the premarital agreement
was signed, Barry first informed her that they needed to go the
following day to the offices of his lawyers, Leonard Brown and
his associate Sabinus Megwa. She was uncertain, however, whether
Barry made any reference to a premarital agreement. She testified
that only at the parking lot of the law office where the agreement
was to be entered into did she learn, from Barry's financial adviser,
Mel Wilcox, that Barry would not marry her unless she signed a
premarital agreement. She was not upset. She was surprised, however,
because Barry never had said that signing the agreement was a precondition
to marriage. She did not question Barry or anyone else on this
point. She was under the impression that Barry wished to retain
separate ownership of property he owned before the marriage, and
that this was the sole object of the premarital agreement. She
was unaware the agreement would affect her future and was not concerned
about the matter, because she was nervous and excited about getting
married and trusted Barry. Wilcox's statement had little effect
on her, because she had no question but that she and Barry were
to be married the following day.
Sun recalled having to hurry to arrive at the lawyers' office
in time both to accomplish their business there and make the scheduled
departure of the airplane to Las Vegas so that she and Barry could
marry the next day. Sun recalled that once they arrived at the
lawyers' office on February 5, 1988, she, her friend Margareta
Forsberg, Barry, and Barry's financial adviser Mel Wilcox were
present in a conference room. She did not recall asking questions
or her friend asking questions, nor did she recall that any changes
were made to the agreement. She declared that her English language
skills were limited at the time and she did not understand the
agreement, but she did not ask questions of anyone other than Margareta
Forsberg or ask for more time, because she did not want to miss
her flight and she was focussed on the forthcoming marriage ceremony.
She did not believe that Barry understood the agreement either.
Forsberg was unable to assist her. Sun did [24 Cal.4th 9] not recall
the lawyers telling her that she should retain her own lawyer,
that they were representing Barry and not her, that the applicable
community property law provided that a spouse has an interest in
the earnings and in acquisitions of the other spouse during marriage,
or that she would be waiving this right if she signed the agreement.
The lawyers may have mentioned the possibility of her being represented
by her own lawyer, but she did not believe she needed one. She
did not inform anyone at the meeting that she was concerned about
the agreement; the meeting and discussion were not cut short, and
no one forced her to sign the agreement.
Forsberg, a native of Sweden and 51 years of age at the time the
agreement was signed, confirmed that she was present when Attorneys
Brown and Megwa explained the agreement, that Wilcox also was present,
that no changes to the agreement were made at Sun's or Forsberg's
request, and that she had been unable to answer Sun's questions
or explain to Sun the terminology used in the agreement. She confirmed
that Sun's English was limited, that the lawyers had explained
the agreement, and that Sun never stated that she was considering
not signing the agreement, that she did not understand it, or that
she was not signing of her own free will. Sun never said that Barry
threatened her or forced her to sign, that she wanted to consult
independent counsel concerning the agreement, or that she felt
pressured. Forsberg understood that Brown and Megwa were Barry's
attorneys, not Sun's. She testified that when the attorneys explained
the agreement, she did not recall any discussion of Sun's community
property rights.
Barry and other witnesses offered a different picture of the circumstances
leading to the signing of the premarital agreement, an account
found by the trial court to be more credible in material respects,
as reflected in its statement of decision. Barry and his attorney,
Brown, recalled that approximately two weeks before the parties
signed the formal agreement, they discussed with Sun the drafting
of an agreement to keep earnings and acquisitions separate. Brown
testified that he told Sun at this meeting that he represented
Barry and that it might be in her best interest to obtain independent
counsel.
Barry, Brown, and Megwa testified that Wilcox was not present
at the February 5, 1988, meeting, which lasted between one and
two hours, and that at the meeting the attorneys informed Sun of
her right to independent counsel. All three recalled that Sun stated
she did not want her own counsel, and Megwa recalled explaining
that he and Brown did not represent her. Additionally, all three
recalled that the attorneys read the agreement to her paragraph
by paragraph and explained it as they went through it, also informing
her of a spouse's basic community property rights in earnings and
[24 Cal.4th 10] acquisitions and that Sun would be waiving these
rights. Megwa recalled it was clearly explained that Barry's income
and acquisitions during the marriage would remain Barry's separate
property, and he recalled that Sun stated that such arrangements
were the practice in Sweden. Furthermore, Barry and the two attorneys
each confirmed that Sun and Forsberg asked questions during the
meeting and were left alone on several occasions to discuss its
terms, that Sun did not exhibit any confusion, and that Sun indicated
she understood the agreement. They also testified that changes
were made to the agreement at Sun's behest. Brown and Megwa experienced
no difficulty in communicating with Sun, found her confident and
happy, and had no indication that she was nervous or confused,
intimidated, or pressured. No threat was uttered that unless she
signed the agreement, the wedding would be cancelled, nor did they
hear her express any reservations about signing the agreement.
Additionally, legal secretary Illa Washington recalled that Wilcox
waited in another room while the agreement was discussed, that
Sun asked questions and that changes were made to the agreement
at her behest, that Sun was informed she could secure independent
counsel, that Sun said she understood the contract and did not
want to consult another attorney, and that she appeared to understand
the discussions and to feel comfortable and confident.
The trial court observed that the
case turned upon the credibility of the witnesses. In support of
its determination that Sun entered into the agreement voluntarily, "free
from the taint of fraud, coercion and undue influence ... with
full knowledge of the property involved and her rights therein," the
trial court made the following findings of fact: "Respondent
[Sun] knew Petitioner [Barry] wished to protect his present property
and future earnings. Respondent knew ... that the Agreement provided
that ... Petitioner's present and future earnings would remain
his separate property.... Respondent is an intelligent woman and
though English is not her native language, she was capable of understanding
the discussion by Attorney Brown and Attorney Megwa regarding the
terms of the agreement and the effect of the Agreement on each
[party's] rights. Respondent was not forced to execute
the document, nor did anyone threaten Respondent in any way. Respondent
never questioned signing the Agreement or requested that she not
sign the Agreement. Respondent's refusal to sign the Agreement
would have caused little embarrassment to her. The wedding was
a small impromptu affair that could have been easily postponed.
Respondent had sufficient knowledge of the nature, value
and extent of the property affected by the Agreement. Petitioner
fully disclosed the nature, approximate value and extent of all
of his assets to Petitioner, both prior to and on the day of the
execution of the agreement. Respondent had sufficient
knowledge and understanding of her rights regarding the [24 Cal.4th
11] property affected by the Agreement, and how the Agreement adversely
affected those rights. Respondent had the opportunity to read the
Agreement prior to executing it. Attorneys Brown and Megwa explained
to both parties their rights regarding the property affected by
the Agreement, and how the Agreement adversely affected those rights.
Respondent never stated prior to execution that she did not understand
the meaning of the Agreement or the explanations provided by Petitioner's
attorneys. Respondent had sufficient awareness and understanding
of her right to, and need for, independent counsel. Respondent
also had an adequate and reasonable opportunity to obtain independent
counsel prior to execution of the Agreement. Respondent was advised
at a meeting with Attorney Brown at least one week prior to execution
of the Agreement that she had the right to have an attorney represent
her and that Attorneys Brown and Megwa represented Petitioner,
not Respondent. On at least two occasions during the February 5,
1988, meeting, Respondent was told that she could have separate
counsel if she chose. Respondent declined. Respondent was capable
of understanding this admonition. The wedding was a small impromptu
affair that could have been easily postponed."
The court also determined that Barry and Sun were not in a confidential
relationship at the time the agreement was executed. The trial
court also declared that pursuant to a pretrial stipulation the
burden of proof rested upon Sun, but that even if the court were
to place the burden of proof upon Barry, Barry had demonstrated
by clear and convincing evidence "that the agreement and its
execution [were] free from the taint of fraud, coercion or undue
influence" and that Sun "entered the agreement with full
knowledge of the property involved and her rights therein."
The Court of Appeal in a split decision reversed the judgment
rendered by the trial court and directed a retrial on the issue
of voluntariness. fn. 2 The majority stressed that Sun lacked independent
counsel, determined that she had not waived counsel effectively,
and concluded that under such circumstances the evidence must be
subjected to strict judicial scrutiny to determine whether the
agreement was voluntary. The majority asserted that Attorneys Brown
and Megwa failed to explain that Sun's interests conflicted with
Barry's, failed to urge her to retain separate counsel, and may
have led Sun to believe they actually represented her interests
as they explained the agreement paragraph by paragraph. The majority
concluded that the trial court erred in failing to give proper
weight to the circumstance that Sun was not represented by independent
counsel. It asserted with regard to marital [24 Cal.4th 12] settlement
agreements in dissolution actions that "the court should 'carefully
scrutinize the agreements' when the party challenging the agreement
did not have the advice of counsel [citation]," and that the
same rule should apply to premarital agreements. It cited various
other circumstances in the present case that, according to the
majority, demonstrated a lack of voluntariness. The majority opinion
pointed to Sun's limited English language skills and lack of "legal
or business sophistication," and stated that she "received
no explanation of the legal consequences to her ensuing from signing
the contract" and "was told there would be 'no marriage'
if she did not immediately sign the agreement." It also referred
to typographical errors and omissions in the agreement, the imminence
of the wedding and the inconvenience and embarrassment of canceling
it, Sun's asserted lack of understanding that she was waiving her
statutory right to a community property interest in Barry's earnings,
and the absence of an attorney acting as an advocate on her behalf.
The dissenting justice contended that the majority had erred in
failing to apply the appropriate legal standard to determine the
voluntariness of the agreement and in failing to accord appropriate
deference to the factual determinations of the trial court.
II. We granted Barry's petition for
review.
[1a] We first consider whether the Court of Appeal majority applied
the appropriate legal standard in resolving the question whether
the premarital agreement was entered into voluntarily. We conclude
it erred in holding that a premarital agreement in which one party
is not represented by independent counsel should be subjected to
strict scrutiny for voluntariness. Such a holding is inconsistent
with Family Code section 1615, which governs the enforceability
of premarital agreements.
A.From the inception of its statehood,
California has retained the community property law that predated
its admission to the Union and consistently has provided as a general
rule that property acquired by spouses during marriage, including
earnings, is community property. (See Fam. Code, § 760; see
also former Civ. Code, § 5110,
added by Stats. 1969, ch. 1608, § 8, p. 3339 and repealed
by Stats. 1992, ch. 162, § 3, p. 464; Stats. 1850, ch. 103, § 2,
p. 254; Stewart v. Stewart (1926) 199 Cal. 318, 321-322 [249 P.
197]; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Community Property, §§ 1-3,
pp. 374-377.) [24 Cal.4th 13]
At the same time, applicable statutes recognized the power of
parties contemplating a marriage to reach an agreement containing
terms at variance with community property law. Thus in 1850, the
Legislature provided that community property principles shall govern
the rights of the parties "unless there is a marriage contract,
containing stipulations contrary thereto." (Stats. 1850, ch.
103, § 14, p. 255; see also former Civ. Code, § 5133,
added by Stats. 1969, ch. 1608, § 8, p. 3343 [community property
law governs property of husband and wife "unless there is
a marriage settlement containing stipulations contrary thereto"];
former Civ. Code, § 177 (enacted in 1872); Barker v. Barker
(1956) 139 Cal.App.2d 206, 212 [293 P.2d 85] ["Parties contemplating
marriage may validly contract as to their property rights, both
as to property then owned by them and as to property, including
earnings, which may be acquired by them after marriage [citations],
and the codes provide for such agreements (see [former] Civ. Code, §§ 177-181
...)"]; see also Fam. Code, § 1500 ["The property
rights of husband and wife prescribed by statute may be altered
by a premarital agreement or other marital property agreement"].)
There is nothing novel about statutory provisions recognizing
the ability of parties to enter into premarital agreements regarding
property, because such agreements long were common and legally
enforceable under English law, fn. 3 and have enjoyed a lengthy
history in this country. fn. 4 In California, a premarital agreement
generally has been considered to be enforceable as a contract,
although when there is proof of fraud, constructive fraud, duress,
or undue influence, the contract is not enforceable. (See Estate
of Wamack (1955) 137 Cal.App.2d 112, 116-117 [289 P.2d 871]; La
Liberty v. La Liberty (1932) 127 Cal.App. 669, 672-673 [16 P.2d
681].) The rules applicable to the interpretation of contracts
have been applied generally to premarital agreements. (See Barham
v. Barham (1949) 33 Cal.2d 416, 422 [202 P.2d 289]; In re Marriage
of Garrity and Bishton (1986) 181 Cal.App.3d 675, 683 [226 Cal.Rptr.
485].)
At one time, a premarital agreement that was not made in contemplation
that the parties would remain married until death was considered
to be [24 Cal.4th 14] against public policy in California and other
jurisdictions (see In re Marriage of Higgason (1973) 10 Cal.3d
476, 485 [110 Cal.Rptr. 897, 516 P.2d 289]; see also Brooks v.
Brooks, supra, 733 P.2d at pp.1048-1049, fn. 4, and cases cited),
but this court concluded in 1976 that the validity of a premarital
agreement "does not turn on whether the parties contemplated
a lifelong marriage." (In re Marriage of Dawley (1976) 17
Cal.3d 342, 352 [131 Cal.Rptr. 3, 551 P.2d 323].) The latter opinion
was in conformity with the emerging view in other jurisdictions
that a premarital agreement concerning the disposition of property
upon the dissolution of a marriage was not against public policy.
(See Posner v. Posner (Fla. 1970) 233 So.2d 381, 385 [often cited
as the seminal opinion on this issue].)
Persons contemplating marriage began to enter into agreements
setting out property rights in contemplation of marital dissolution—rights
that differed from those that would accrue under applicable statutes—but
there was some uncertainty and considerable lack of uniformity
regarding the circumstances under which such agreements would be
enforceable. (See 9B West's U. Laws Ann. (1987) U. Premarital Agreement
Act (1983) Prefatory Note, p. 369.) In order to encourage enforcement
of such agreements on a more certain and uniform basis, while,
according to the drafters of the act, retaining some "flexibility," the
Uniform Premarital Agreement Act (hereafter sometimes referred
to as the Uniform Act) was promulgated in 1983. (9B West's U. Laws
Ann., supra, Uniform Act, Prefatory Note, p. 369.)
In 1985, the California Legislature adopted most of the provisions
of the Uniform Act. (Fam. Code § 1600 et seq. (hereafter referred
to sometimes as the California Uniform Act); see former Civ. Code, § 5300
et seq., added by Stats. 1985, ch. 1315, § 3, p. 4582; Sen.
Com. on Judiciary, Rep. on Sen. Bill No. 1143 (1985-1986 Reg. Sess.)
p. 2; Assem. 3d reading digest of Sen. Bill No. 1143 (1985-1986
Reg. Sess.) as amended Aug. 28, 1985, p. 3.) The only provisions
of the Uniform Act omitted by the California Legislature were those
permitting the parties to waive the right to spousal support and
limiting the right to waive spousal support where such a waiver
would result in a spouse's becoming a public charge. (Compare Fam.
Code, § 1600 et seq. with 9B West's U. Laws Ann., supra, Uniform
Act, § 3, subd. (a)(4), p. 373; id., § 6, subd. (b),
p. 376.) This legislative omission is examined in today's decision
in In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th
39 [99 Cal.Rptr.2d 278, 5 P.3d 839], but is not involved in the
present case.
B. The California enactment, like
the Uniform Act, sets out the law of premarital agreements, including
such matters as the nature of property [24 Cal.4th 15] subject
to such agreements, the requirement of a writing, and provision
for amendments. (See Fam. Code, §§ 1611-1614.)
Section 1615 of the Family Code, like section 6 of the Uniform
Act, regulates the enforceability of such agreements. It provides
in pertinent part: "(a) A premarital agreement is not enforceable
if the party against whom enforcement is sought proves either of
the following:
(1) That party did not execute the
agreement voluntarily.
(2) The agreement was unconscionable
when it was executed and, before execution of the agreement, all
of the following applied to that party:
(A) That party
was not provided a fair and reasonable disclosure of the property
or financial obligations of the other party.
(B) That
party did not voluntarily and expressly waive, in writing, any
right to disclosure of the property or financial obligations of
the other party beyond the disclosure provided.
(C) That
party did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other
party."
Pursuant to Family Code section 1615, a premarital agreement will
be enforced unless the party resisting enforcement of the agreement
can demonstrate either (1) that he or she did not enter into the
contract voluntarily, or (2) that the contract was unconscionable
when entered into and that he or she did not have actual or constructive
knowledge of the assets and obligations of the other party and
did not voluntarily waive knowledge of such assets and obligations.
In the present case, the trial court found no lack of knowledge
regarding the nature of the parties' assets, a necessary predicate
to considering the issue of unconscionability, and the Court of
Appeal accepted the trial court's determination on this point.
We do not reconsider this factual determination, and thus the question
of unconscionability is not before us. We also do not review the
determination of the Court of Appeal that California law, rather
than Arizona law, governs the enforceability of this agreement,
and we express no opinion on this point. Thus, the only issue we
face concerns the trial court's determination that Sun entered
into the agreement voluntarily.
Neither the article of the Family Code in which section 1615 is
located, nor the Uniform Act, defines the term "voluntarily." Certain
rules of construction guide us in our interpretation of this term.
[2] "We begin with the fundamental rule that a court 'should
ascertain the intent of the Legislature so as to effectuate the
purpose of the law.' [Citation.] In determining such intent '[t]he
court turns first to the words themselves for the answer.' [Citation]." (Moyer
v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr.
144, 514 P.2d 1224].) " 'Words used in a statute ... should
be given the meaning they bear in ordinary use.' " (Wilcox
v. Birtwhistle (1999) 21 Cal.4th 973, 977 [90 Cal.Rptr.2d 260,
987 P.2d 727].) If [24 Cal.4th 16] the language reasonably may
be interpreted in more than one way, we may consult extrinsic aids
to determine the intent of the Legislature. (Ibid.)
Courts frequently consult dictionaries to determine the usual
meaning of words. (Romano v. Rockwell Internat., Inc. (1996) 14
Cal.4th 479, 493 [59 Cal.Rptr.2d 20, 926 P.2d 1114]; Moyer v. Workmen's
Comp. Appeals Bd., supra, 10 Cal.3d at pp. 230-231.) [3] Black's
Law Dictionary defines "voluntarily" as "Done by
design .... Intentionally and without coercion." (Black's
Law Dict. (6th ed. 1990) p. 1575.) The same source defines "voluntary" as "Proceeding
from the free and unrestrained will of the person. Produced in
or by an act of choice. Resulting from free choice, without compulsion
or solicitation. The word, especially in statutes, often implies
knowledge of essential facts." (Ibid.) The Oxford English
Dictionary defines "voluntarily" as "[o]f one's
own free will or accord; without compulsion, constraint, or undue
influence by others; freely, willingly." (19 Oxford English
Dict. (2d ed. 1989) p. 753.)
To the extent it is unclear on the face of the statute what was
intended by the Legislature in employing the term "voluntarily," we
consult the history of the statute and consider its general intent
in order to determine the sense in which the Legislature used the
term. (See People v. Cruz (1996) 13 Cal.4th 764, 773-774 & fn.
5 [55 Cal.Rptr.2d 117, 919 P.2d 731]; Moyer v. Workmen's Comp.
Appeals Bd., supra, 10 Cal.3d at p. 232 [meaning of the term "voluntary" is
construed in a manner designed to carry out the apparent intent
of the workers' compensation law].)
The debate that preceded the adoption of the Uniform Act indicated
a basic disagreement between those commissioners at the National
Conference of Commissioners on Uniform State Laws who placed the
highest value on certainty in enforcement of premarital agreements
and the vocal minority of commissioners who urged that such contracts
routinely should be evaluated for substantive fairness at the time
of enforcement. (See National Conference of Commissioners on Uniform
State Laws, Proceedings in Committee of the Whole, U. Premarital
Agreement Act (July 23-26, 1983) pp. 49-97 (Proceedings, Uniform
Act).) Indeed, over sharp and repeated objection from commissioners
of the minority view, eventually it was settled that the party
against whom enforcement of a premarital agreement was sought only
could raise the issue of unconscionability, that is, the substantive
unfairness of an agreement, if he or she also could demonstrate
lack of disclosure of assets, lack of waiver of disclosure, and
lack of imputed knowledge of assets. The language adopted was intended
to enhance the enforceability of premarital agreements and to convey
the sense that an agreement voluntarily entered into would be enforced
without regard to the apparent unfairness of [24 Cal.4th 17] its
terms, as long as the objecting party knew or should have known
of the other party's assets, or voluntarily had waived disclosure.
(Proceedings, Uniform Act, supra, pp. 52, 54, 75, 76, 80, 100,
101.) The commissioners, however, did not supply a definition of
the term "voluntarily," nor was there much discussion
of the term.
We find an indication of the commissioners' understanding of the
term in their official comment to the enforcement provision of
the Uniform Act, stating that the conditions to enforcement "are
comparable to concepts which are expressed in the statutory and
decisional law of many jurisdictions." (9B West's U. Laws
Ann., supra, Uniform Act, com. to § 6, p. 376.) In support
of this statement, the comment cites cases from various jurisdictions
examining the voluntariness of premarital agreements. These cases
vary in their formal approach to the problem—some engage
in a presumption of undue influence and place the burden of proof
on the party seeking to enforce the agreement (see Lutgert v. Lutgert
(Fla.Dist.Ct.App. 1976) 338 So.2d 1111, 1113-1117), while some
place the burden of proof on the person challenging the agreement.
(In re Kaufmann's Estate (1961) 404 Pa. 131 [171 A.2d 48, 50-51].)
In the majority of these cases, however, the question is viewed
as one involving such ordinary contract defenses as fraud, undue
influence, or duress, along with some examination of the parties'
knowledge of the rights being waived, or at least knowledge of
the intent of the agreement. fn. 5
[4] These cases demonstrate the commissioners' belief that a number
of factors are relevant to the issue of voluntariness. In considering
defenses proffered against enforcement of a premarital agreement,
the court should consider whether the evidence indicates coercion
or lack of knowledge [24 Cal.4th 18] —just as would be suggested
by the dictionary definitions of voluntariness noted above. Specifically,
the cases cited in the comment to the enforcement provision of
the Uniform Act direct consideration of the impact upon the parties
of such factors as the coercion that may arise from the proximity
of execution of the agreement to the wedding, or from surprise
in the presentation of the agreement; the presence or absence of
independent counsel or of an opportunity to consult independent
counsel; inequality of bargaining power—in some cases indicated
by the relative age and sophistication of the parties; whether
there was full disclosure of assets; and the parties' understanding
of the rights being waived under the agreement or at least their
awareness of the intent of the agreement. fn. 6
The cases cited in the comment to the enforcement provision of
the Uniform Act indicate that the commissioners considered that
the voluntariness of a premarital agreement may turn in part upon
whether the agreement was entered into knowingly, in the sense
that the parties understood the terms or basic effect of the agreement.
(See Hafner v. Hafner, supra, 295 N.W.2d at pp. 571-572 [objecting
party understood purpose of the agreement]; Del Vecchio v. Del
Vecchio, supra, 143 So.2d at p. 21 [noting that the party challenging
the agreement had some understanding of the marital rights being
waived]; In re Marriage of Coward, supra, 582 P.2d at pp. 835-836
[noting objecting party's awareness of the intent of the agreement].)
A premarital agreement often contains at least some hallmarks of
a waiver, in that it may bind a person to forgo important rights
secured by community property law—rights that in the absence
of an agreement would vest automatically upon marriage. (See Del
Vecchio v. Del Vecchio, supra, 143 So.2d at p. 20; see also Estate
of Schwartz (1947) 79 Cal.App.2d 308, 310 [179 P.2d 868] [examining
a premarital agreement for proper waiver of marital rights]; In
re Marriage of Spiegel (Iowa 1996) 553 N.W.2d 309, 315 [drawing
the same analogy to the waiver doctrine in examining the voluntariness
of premarital agreements]; Younger, Perspectives on Antenuptial
Agreements, supra, 40 Rutgers L.Rev. at p. 1078 [same].) We observe
that the factors relevant to the voluntariness of a waiver generally
depend upon the statutory scheme involved, and most frequently
it is required that a waiver be entered into with knowledge of
the effect of the agreement. (See Moyer v. Workmen's Comp. Appeals
Bd., supra, 10 Cal.3d 222.) Similarly, the cases cited in the comment
to the enforcement section (§ 6) of the Uniform Act indicate
that the parties' general understanding of the effect of the agreement
constitutes a factor for the court to consider in determining whether
the parties entered into the agreement voluntarily.
The commissioners' debate over the problem of unconscionability
throws further light on their view of the voluntariness requirement,
which, as noted, [24 Cal.4th 19] did not receive much explicit
discussion. Those taking the minority view noted with concern that
the proposed Uniform Act would enforce agreements that might be
declared void as unconscionable under the Uniform Commercial Code,
because the Uniform Act precluded consideration of the substantive
fairness of the agreement unless the party challenging the agreement
also could prove lack of notice of the other party's assets and
obligations. fn. 7 Commissioners who valued substantive fairness
over certainty of enforcement urged, for example, that if a premarital
agreement waiving property rights is entered into between a pregnant
teenager—who wishes to ensure the legitimacy of her child—and
an older man, the agreement should be subject to searching scrutiny
for unconscionability; those taking the majority position countered
that the requirement that the contract be entered into voluntarily
provided adequate protection to the weaker party. (Proceedings,
Uniform Act, supra, pp. 71-73.) In addition, it was clear from
their discussion that the commissioners anticipated that such defenses
as lack of capacity, fraud, duress, and undue influence would apply
in determining the voluntariness of the agreement. (Id. p. 131.)
In sum, it is clear from the cases cited in the comment to the
enforcement section of the Uniform Act and from the record of the
proceedings of the National Conference of Commissioners on Uniform
State Laws that the commissioners intended that the party seeking
to avoid a premarital agreement may prevail by establishing that
the agreement was involuntary, and that evidence of lack of capacity,
duress, fraud, and undue influence, as demonstrated by a number
of factors uniquely probative of coercion in the premarital context,
would be relevant in establishing the involuntariness of the agreement.
Not only did the commissioners intend that the above factors be
considered in determining whether a premarital agreement was entered
into voluntarily, but the same intention safely may be attributed
to the California Legislature, because an examination of the history
of the enactment of Family Code section 1615 in California indicates
that the Legislature adopted the views of the commissioners in
all respects relevant to the present discussion. fn. 8
Decisions interpreting the enforcement provision of the Uniform
Act in other jurisdictions also refer to such factors as inequality
of bargaining [24 Cal.4th 20] power, coercion arising from circumstances
peculiar to an imminent wedding, the absence of independent counsel
for one party, and the parties' knowledge of the purpose of the
agreement. fn. 9 The factors we have identified also are in most
respects consistent with recent non-Uniform Act cases in other
jurisdictions that examine what often is termed the procedural
fairness of premarital agreements. fn. 10 These factors also are
consistent with the circumstances previously considered in this
state, prior to California's adoption of the Uniform Act, in connection
with the issue of the voluntariness of a premarital agreement.
In In re Marriage of Dawley, supra, 17 Cal.3d 342, for example,
we rejected the wife's claim that a premarital agreement waiving
community property rights had been obtained through undue influence,
[24 Cal.4th 21] pointing out that in the particular case the pressure
to marry created by an unplanned pregnancy fell equally on both
the parties, that both parties were educated and employed, and
that the party challenging the agreement did not rely upon the
other party's advice, but consulted her own attorney. (Id. at p.
355 and fn. 8; see also Estate of Cantor (1974) 39 Cal.App.3d 544,
548-549 [114 Cal.Rptr. 160] [finding that the party disputing a
premarital agreement made a knowing waiver of his marital rights];
La Liberty v. La Liberty, supra, 127 Cal.App. at pp. 673-674 [rejecting
lack of independent counsel as a basis for rescission, given the
parties' apparent understanding of the meaning of the premarital
agreement].)
[1b] We have considered the range of factors that may be relevant
to establish the involuntariness of a premarital agreement in order
to consider whether the Court of Appeal erred in according such
great weight to one factor—the presence or absence of independent
counsel for each party. As we shall explain, we do not believe
that the terms or history of section 1615 of the Family Code support
the conclusion of the Court of Appeal majority that a premarital
agreement should be subjected to strict scrutiny for voluntariness
in the absence of independent counsel for the less sophisticated
party or of an assertedly effective and knowing waiver of counsel
comparable to that occurring in the criminal law setting (and potentially
also requiring an offer by the represented party to pay for independent
counsel for the other party).
In the official comment to the Uniform Act, the commissioners
stated: "Nothing in [the enforcement section] makes the absence
of assistance of independent legal counsel a condition for the
unenforceability of a premarital agreement. However, lack of that
assistance may well be a factor in determining whether the conditions
stated in [the section] may have existed [citation]." (See
9B West's U. Laws Ann., supra, Uniform Act, com. to § 6, p.
377.)
It is clear from the history of the Uniform Act that the commissioners
rejected the view that independent counsel was essential to the
enforceability of premarital agreements. Although the proposed
Uniform Act initially contained a proviso stating that premarital
agreements were presumptively valid unless the party against whom
enforcement was sought was not represented by independent legal
counsel or there was not full disclosure, the commissioners eventually
removed any reference to independent counsel. (Proceedings, Uniform
Act, supra, pp. 3-4.) A commissioner explained the action of the
executive committee in removing the proviso: "We feel that,
certainly, that representation would be a factor in determining
whether the party acted voluntarily and knowingly. We do not believe,
however, that [24 Cal.4th 22] legal representation alone would
be a desirable basis for enforcement." (Ibid., italics added.)
An amendment was proposed to restore the omitted provision, but
it was rejected with the comment that "the legislatures of
the states ought [not] to be making the rights of people dependent
upon whether or not they have lawyers," and the observation
that such a rule would not reduce litigation but instead would
transfer the litigation to malpractice actions. (Proceedings, Uniform
Act, supra, pp. 61-62.)
Further, in the comment to the enforcement section of the Uniform
Act, the commissioners cited cases that discussed the presence
or absence of independent counsel, or at least a reasonable opportunity
to consult independent counsel, as simply a factor to consider
in determining the voluntariness of the agreement. (See Lutgert
v. Lutgert, supra, 338 So.2d at pp. 1115-1117 [among other coercive
circumstances, the prospective wife had no opportunity to consult
independent counsel, and her conversation with the prospective
husband's attorney did not result in any amendment of the agreement];
Hafner v. Hafner, supra, 295 N.W.2d at pp. 571-572 [the prospective
wife did not have independent counsel, but the agreement was enforceable
largely because she understood its purpose]; Del Vecchio v. Del
Vecchio, supra, 143 So.2d at pp. 19-20 [it is preferable, but not
required, that each party have independent counsel]; In re Marriage
of Coward, supra, 582 P.2d at p. 836 [the prospective wife's opportunity
to consult independent counsel and the advice of the prospective
husband's attorney that she do so were factors in support of the
enforcement of the premarital agreement, along with the circumstance
that the arrangement had been discussed over a period of time,
and in view of the prospective wife's knowledge of the business
world and of the assets involved, and her clear understanding of
the intent of the agreement]; Matter of Estate of Lebsock, supra,
618 P.2d at p. 686 [trial court correctly refused to instruct the
jury that the agreement was invalid unless the prospective wife
had independent counsel]; see also Annot. (1987) 53 A.L.R.4th 85,
106-134 [collecting cases analyzing presence of counsel as a factor
in determining enforceability of premarital agreements].) This
is consistent with case law in California before its enactment
of the Uniform Act. (La Liberty v. La Liberty, supra, 127 Cal.App.
at pp. 673-674.)
As noted, few state courts have interpreted their own versions
of the Uniform Act, but one court that has considered under the
act the relationship of independent counsel to the question of
voluntariness is the Supreme Court of North Dakota. That court,
reversing the grant of summary judgment in favor of heirs seeking
enforcement of a premarital agreement in which the parties waived
their share in the other party's estate, determined that issues
of fact remained regarding the voluntariness of the wife's endorsement
of the premarital agreement. Specifically, the court noted a factual
dispute as to [24 Cal.4th 23] whether the wife adequately was advised
to obtain independent counsel. It observed that under North Dakota
law, the parties were in a confidential relationship and, observing
that the state has an interest in every marriage contract, concluded: "We
agree with the view that lack of adequate legal advice to a prospective
spouse to obtain independent counsel is a significant factual factor
in weighing the voluntariness of a premarital agreement.
Indeed, adequate legal representation
will often be the best evidence that a spouse signed a premarital
agreement knowledgeably and voluntarily." (Matter
of Estate of Lutz, supra, 563 N.W.2d at p. 98.) But even the North
Dakota court acknowledged that no state has made the presence of
independent counsel a prerequisite to enforceability. (Id. at p.
97.) The Rhode Island Supreme Court has determined that independent
counsel is not required for enforcement of premarital agreements
under the Uniform Act. (Penhallow v. Penhallow, supra, 649 A.2d
at p. 1022; see also Marsh v. Marsh, supra, 949 S.W.2d at pp. 740-741
[lack of independent counsel is not dispositive under the Uniform
Act; disadvantaged spouse had been advised to seek separate counsel];
Lebeck v. Lebeck, supra, 881 P.2d at p. 734 [one factor in favor
of enforcement was review of agreement by independent counsel].)
It seems evident that the commissioners who enacted the Uniform
Act intended that the presence of independent counsel (or a reasonable
opportunity to consult counsel) should be merely one factor among
several that a court should consider in examining a challenge to
the voluntariness of a premarital agreement. Moreover, the overall
purpose of the Uniform Act was to enhance the enforceability of
premarital agreements, a goal that would not be furthered if agreements
were presumed to be of doubtful voluntariness unless both parties
were represented by independent counsel. When we also consider
the circumstance that in a majority of dissolution cases in California
at least one of the two parties apparently is not represented by
counsel (Judicial Council of Cal., Ann. Rep. (1998) State Court
Outlook, p. 40), it seems unlikely that our Legislature intended
that the voluntariness of a premarital agreement should be subjected
to strict scrutiny unless each party were represented by independent
counsel or an unrepresented party had entered into a formal knowing
waiver of counsel comparable to that required in the criminal law
setting, as the Court of Appeal holding apparently would require.
We also note that in those instances in which the Legislature has
intended that the presence of independent counsel should be a critical
factor in the enforceability of an agreement, it has explicitly
so provided. When, for example, by an agreement entered into either
before or during marriage, a person waives his or her statutory
inheritance rights as a surviving spouse, the waiver generally
is enforceable unless the surviving spouse proves that he or she
did not obtain a fair disclosure of the property involved or that "[t]he
surviving spouse was not represented by independent legal counsel
at [24 Cal.4th 24] the time of signing of the waiver." (Prob.
Code, § 143, subd. (a)(2).) Again, such a requirement does
not appear in the California Uniform Act.
Finally, and perhaps most significantly, the rule created by the
Court of Appeal would have the effect of shifting the burden of
proof on the question of voluntariness to the party seeking enforcement
of the premarital agreement, even though the statute expressly
places the burden upon the party challenging the voluntariness
of the agreement. Because the commissioners and our Legislature
placed the burden of proof of involuntariness upon the party challenging
a premarital agreement, it seems obvious that the party seeking
enforcement should not be required to prove that the absence of
any factor tending to establish voluntariness did not render the
agreement involuntary—the inevitable result were we to adopt
the strict scrutiny standard suggested by the Court of Appeal.
We conclude that although the ability of the party challenging
the agreement to obtain independent counsel is an important factor
in determining whether that party entered into the agreement voluntarily,
the Court of Appeal majority erred in directing trial courts to
subject premarital agreements to strict scrutiny where the less
sophisticated party does not have independent counsel and has not
waived counsel according to exacting waiver requirements.
C. [5] Although we agree with Barry
that the lack of independent counsel for each party cannot alter
the burden of proof that, by operation of statute, rests upon the
party challenging the validity of the premarital agreement, we
also agree with the Court of Appeal majority that considerations
applicable in commercial contexts do not necessarily govern the
determination whether a premarital agreement was entered into voluntarily.
Some of the commissioners debating the Uniform Act appeared to
equate a premarital agreement with a commercial contract, and one
court has emphasized that both parties contemplating marriage possess
freedom of contract, which should not be restricted except as it
would be in the context of a commercial contract. (Simeone v. Simeone
(1990) 525 Pa. 392 [581 A.2d 162, 165-166] [not interpreting the
Uniform Act].) Even apart from the circumstance that there is no
statutory requirement that commercial contracts be entered into
voluntarily as that term is used in Family Code section 1615, we
observe some significant distinctions between the two types of
contracts. A commercial contract most frequently constitutes a
private regulatory agreement intended to ensure the successful
outcome of the business between the contracting parties—in
essence, to guide their relationship so that [24 Cal.4th 25] the
object of the contract may be achieved. Normally, the execution
of the contract ushers in the applicability of the regulatory scheme
contemplated by the contract and the endeavor that is the object
of the contract. As for a premarital agreement (or clause of such
an agreement) providing solely for the division of property upon
marital dissolution, the parties generally enter into the agreement
anticipating that it never will be invoked, and the agreement,
far from regulating the relationship of the contracting parties
and providing the method for attaining their joint objectives,
exists to provide for eventualities that will arise only if the
relationship founders, possibly in the distant future under greatly
changed and unforeseeable circumstances.
Furthermore, marriage itself is a highly regulated institution
of undisputed social value, and there are many limitations on the
ability of persons to contract with respect to it, or to vary its
statutory terms, that have nothing to do with maximizing the satisfaction
of the parties or carrying out their intent. Such limitations are
inconsistent with the freedom-of-contract analysis espoused, for
example, by the Pennsylvania Supreme Court. (See Simeone v. Simeone,
supra, 581 A.2d at p. 165.) We refer to rules establishing a duty
of mutual financial support during the marriage (Fam. Code, § 720)
and prohibiting agreements in derogation of the duty to support
a child of the marriage (Fam. Code, §§ 1612, subd. (b),
3900-3901; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947 [126
Cal.Rptr. 805, 544 P.2d 941]; In re Marriage of Buzzanca (1998)
61 Cal.App.4th 1410, 1426-1427, fn. 17 [72 Cal.Rptr.2d 280, 77
A.L.R.5th 775]); the unenforceability of a promise to marry (Civ.
Code, § 43.5, subd. (d); Askew v. Askew (1994) 22 Cal.App.4th
942, 954-957 [28 Cal.Rptr.2d 284] [tracing the history of the rule
that breach of a promise to marry does not give rise to an action
in contract or tort]); the circumstance that a party may abandon
the marriage unilaterally under this state's no-fault laws; and
the pervasive state involvement in the dissolution of marital status,
the marriage contract, and the arrangements to be made for the
children of the marriage—even without consideration of the
circumstance that marriage normally lacks a predominantly commercial
object. We also observe that a premarital agreement to raise children
in a particular religion is not enforceable. (In re Marriage of
Weiss (1996) 42 Cal.App.4th 106, 113-115 [49 Cal.Rptr.2d 339].)
We note, too, that there is authority—as conceded by the
commissioners who considered the Uniform Act—to the effect
that a contract to pay a spouse for personal services such as nursing
cannot be enforced, despite the undoubted economic value of the
services (see Borelli v. Brusseau (1993) 12 Cal.App.4th 647, 651-654
[16 Cal.Rptr.2d 16]; see also Silbaugh, Marriage Contracts and
the Family Economy (1998) 93 N.W.U. L.Rev. 65, 123 [most jurisdictions
will not enforce agreements with respect to personal services rendered
during marriage]; Note, Planning for Love: The Politics of Prenuptial
Agreements, supra, 49 Stan. L.Rev. at p. [24 Cal.4th 26] 900 [same]).
These limitations demonstrate further that freedom of contract
with respect to marital arrangements is tempered with statutory
requirements and case law expressing social policy with respect
to marriage.
There also are obvious differences between the remedies that realistically
may be awarded with respect to commercial contracts and premarital
agreements. Although a party seeking rescission of a commercial
contract, for example, may be required to restore the status quo
ante by restoring the consideration received, and a party in breach
may be required to pay damages, the status quo ante for spouses
cannot be restored to either party, nor are damages contemplated
for breach of the marital contract. In any event, the suggestion
that commercial contracts are strictly enforced without regard
to the fairness or oppressiveness of the terms or the inequality
of the bargaining power of the parties is anachronistic and inaccurate,
in that claims such as duress, unconscionability, and undue influence
turn upon the specific context in which the contract is formed.
(See Bix, Bargaining in the Shadow of Love: The Enforcement of
Premarital Agreements and How We Think About Marriage (1998) 40
Wm. & Mary L.Rev. 145, 163, 182, 188, 205; see also Atwood,
Ten Years Later: Lingering Concerns About the Uniform Premarital
Agreement Act (1993) 19 J. Legis. 127, 146.)
We also have explained generally that we believe the reference
to voluntariness in the Uniform Act was intended to convey an element
of knowing waiver that is not a consistent feature of commercial
contract enforcement. Further, although the Uniform Act contemplated
that contract defenses should apply, in the sense that an agreement
should be free from fraud (including constructive fraud), duress,
or undue influence, it is clear from the debate of the commissioners
who adopted the Uniform Act and the cases cited in support of the
enforcement provision of the Uniform Act that subtle coercion that
would not be considered in challenges to ordinary commercial contracts
may be considered in the context of the premarital agreement. (See,
e.g., Lutgert v. Lutgert, supra, 338 So.2d at pp. 1113-1116 [agreement
presented too close to the wedding, with passage booked on an expensive
cruise].) The obvious distinctions between premarital agreements
and ordinary commercial contracts lead us to conclude that factual
circumstances relating to contract defenses (see Civ. Code, § 1567)
that would not necessarily support the rescission of a commercial
contract may suffice to render a premarital agreement unenforceable.
The question of voluntariness must be examined in the unique context
of the marital relationship. (See Brandt, The Uniform Premarital
Agreement Act and the Reality of Premarital Agreements in Idaho
(1997) 33 Idaho L.Rev. 539, 546-547, 562-564; Younger, Perspectives
on Antenuptial Agreements: An Update (1992) 8 J. Am. Acad. Matrim.
Law. 1, 19-20; Younger, Perspectives on Antenuptial Agreements,
supra, 40 [24 Cal.4th 27] Rutgers L.Rev. at p. 1075; see also ALI,
Principles of the Law of Family Dissolution: Analysis and Recommendations
(Tent. Draft No. 4, Apr. 10, 2000) § 7.02, coms. (a), pp.
90-91, (c), pp. 92-94; id., § 7.05, com. (b), pp. 100-101;
id., § 7.07, com. (b), pp. 132-134.)
[6] On the other hand, we do not agree with Sun and the Court
of Appeal majority that a premarital agreement should be interpreted
and enforced under the same standards applicable to marital settlement
agreements. First, although persons, once they are married, are
in a fiduciary relationship to one another (Fam. Code, § 721,
subd. (b)), so that whenever the parties enter into an agreement
in which one party gains an advantage, the advantaged party bears
the burden of demonstrating that the agreement was not obtained
through undue influence (In re Marriage of Haines (1995) 33 Cal.App.4th
277, 293 [39 Cal.Rptr.2d 673]), a different burden applies under
the Uniform Act in the premarital setting. Even when the premarital
agreement clearly advantages one of the parties, the party challenging
the agreement bears the burden of demonstrating that the agreement
was not entered into voluntarily. Further, under the Uniform Act,
even when there has been a failure of disclosure, the statute still
places the burden upon the party challenging the agreement to prove
that the terms of the agreement were unconscionable when executed,
rather than placing the burden on the advantaged party to demonstrate
that the agreement was not unconscionable. Thus the terms of the
act itself do not support the Court of Appeal's conclusion that
the Legislature intended that premarital agreements should be interpreted
in the same manner as agreements entered into during marriage.
In particular, we believe that both the Court of Appeal majority
and Sun err to the extent they suggest that the Uniform Act or
its California analog established that persons who enter into premarital
agreements must be presumed to be in a confidential relationship,
a status that would give rise to the fiduciary duties between spouses
expressly established by section 721 of the Family Code. California
law prior to the enactment of the Uniform Act was to the contrary
(see In re Marriage of Dawley, supra, 17 Cal.3d at p. 355 [persons
entering into prenuptial agreement are not presumed to be in a
confidential relationship]), and we discern nothing in the Uniform
Act suggesting that its adoption in California was intended to
overrule our earlier decision.
The primary consequences of designating a relationship as fiduciary
in nature are that the parties owe a duty of full disclosure, and
that a presumption arises that a party who owes a fiduciary duty,
and who secures a benefit through an agreement, has done so through
undue influence. (See 1 Witkin, Summary of Cal. Law (9th ed.1987)
Contracts, §§ 425, 426, pp. 381-383; [24 Cal.4th 28]
see also Civ. Code, § 1575.) For example, a transaction in
which an attorney gains an advantage over his or her client "is
presumptively invalid, and the attorney must show not only that
it was fair, but that the client was fully informed of all facts
necessary to enable him to deal at arm's length." (1 Witkin,
Summary of Cal. Law, supra, Contracts, § 425, pp. 381-382,
italics omitted.) It long has been the rule that "[w]hen an
interspousal transaction advantages one spouse, '[t]he law, from
considerations of public policy, presumes such transactions to
have been induced by undue influence.' " (In re Marriage of
Haines, supra, 33 Cal.App.4th at p. 293, quoting Brison v. Brison
(1888) 75 Cal. 525, 529 [17 P. 689].)
California law also recognizes a lesser degree of confidential
relationship that may arise, for example, between family members
and between friends. (See 1 Witkin, Summary of Cal. Law, supra,
Contracts, § 427, pp. 383-384.) In such cases "mere lack
of independent advice is not sufficient to raise a presumption
of undue influence or of constructive fraud, even when the consideration
appears inadequate. But when to these factors is added some other
such as great age, weakness of mind, sickness or other incapacity,
the presumption arises, and the burden is on the other party to
show that no oppression took place." (Ibid., italics in original;
see also Tyler v. Children's Home Society (1994) 29 Cal.App.4th
511, 550 [35 Cal.Rptr.2d 291].) fn. 11
In the Dawley case, we found substantial evidence to support an
implied finding that an agreement between persons contemplating
marriage was not the result of undue influence. We stated: "Parties
who are not yet married are not presumed to share a confidential
relationship [citations]; the record demonstrates that Betty did
not rely on the advice and integrity of James in entering into
the antenuptial agreement." (In re Marriage of Dawley, supra,
17 Cal.3d at p. 355, italics added; see also La Liberty v. La Liberty,
supra, 127 Cal.App. at p. 673 ["The inferences of fraud and
undue influence which require the courts to carefully examine a
contract between a husband and wife, where one has gained an advantage
over the other, do not necessarily apply to prenuptial contracts
...."].) [24 Cal.4th 29]
Because the Uniform Act was intended to enhance the enforceability
of premarital agreements, because it expressly places the burden
of proof upon the person challenging the agreement, and finally
because the California statute imposing fiduciary duties in the
family law setting applies only to spouses, we do not believe that
the commissioners or our Legislature contemplated that the voluntariness
of a premarital agreement would be examined in light of the strict
fiduciary duties imposed on persons such as lawyers, or imposed
expressly by statute upon persons who are married. (See Fam. Code, § 721.)
fn. 12 Nor do we find any indication that the California Legislature
intended to overrule our Dawley decision. Although we certainly
agree that persons contemplating marriage morally owe each other
a duty of fair dealing and obviously are not embarking upon a purely
commercial contract, we do not believe that these circumstances
permit us to interpret our statute as imposing a presumption of
undue influence or as requiring the kind of strict scrutiny that
is conducted when a lawyer or other fiduciary engages in self-dealing.
On the contrary, it is evident that the Uniform Act was intended
to enhance the enforceability of premarital agreements, a goal
that would be undermined by presuming the existence of a confidential
or fiduciary relationship.
Finally, the reference by the Court of Appeal majority to the
state's interest in an equal division of marital property appears
misplaced in the premarital context, and its claim that the same
policy interests apply to premarital agreements is flawed. We have
not been directed to relevant authority establishing that the Legislature
intended that premarital agreements should be examined for fairness
or enforceability on the same basis as marital settlement agreements.
Instead, multiple differences in the statutes regulating each type
of agreement suggest that the Legislature contemplated different
standards for each type of agreement. Although community property
law expresses a strong state interest in the equal division of
property obtained during a marriage, so that any agreement in derogation
of equal distribution should be subject to searching scrutiny for
fairness, the substantive fairness of a premarital agreement is
not open to examination unless the party objecting to enforcement
meets the demands of Family Code section 1615, subdivision (a)(2).
As explained above, with respect to division of [24 Cal.4th 30]
property during marriage and upon dissolution of marriage, the
Family Code provides that the parties stand in a confidential,
fiduciary relationship to one another (Fam. Code, § 721, subd.
(b)), but such a proviso does not appear in the California Uniform
Act regulating premarital agreements. Marital settlement agreements
must be preceded by rather elaborate disclosure of assets and liabilities,
as well as income and expenses, and strict rules govern the waiver
of disclosure. (Fam. Code, §§ 2100-2110; In re Marriage
of Fell (1997) 55 Cal.App.4th 1058, 1064-1066 [64 Cal.Rptr.2d 522].)
Such detailed requirements do not apply to premarital agreements.
We are not persuaded that the policy of equal division of assets
at the time of dissolution is intended to apply to premarital agreements.
In sum, the Court of Appeal majority erred in suggesting that the
voluntariness of a premarital agreement should be assessed on the
assumption that the parties were in a confidential relationship,
and in pursuit of the policy favoring equal division of assets
upon dissolution.
D. The Court of Appeal majority,
suggesting that counsel for the party who proposed the premarital
agreement has a duty to provide a warning to the other party if
he or she is unrepresented, stated: "Counsel,
at a minimum, must explain to the unrepresented party (1) that
the attorney's responsibility is to pursue and protect only the
interests of his or her client; (2) that spousal interests are
probably not identical and are likely to conflict; (3) that the
spouses' interests will change over time and the attorney will
not be concerned with providing for all the changed circumstances
that could possibly impact the unrepresented spouse; and (4) that
signing this agreement will eliminate or modify his or her statutory
rights."
Both Sun and Barry contend that counsel for the represented party
cannot effectively or ethically explain to the unrepresented party
what rights are being waived under the agreement. Barry claims
that such a warning would be unethical, because it would be inconsistent
with the attorney's duty to serve only his or her own client's
interest. Sun adds that such a rule would be improper because it
would violate a rule of professional conduct prohibiting counsel
for one party from giving legal advice to an opposing party who
is unrepresented, in that such advice might cause the unrepresented
party to believe counsel is serving both parties.
We do not believe that the case before us presents an appropriate
occasion to delineate the duties that must guide an attorney in
drafting a premarital agreement. The issue before us is the enforceability
of a premarital agreement, not the extent, if any, of counsel's
duty to an unrepresented party to [24 Cal.4th 31] the agreement,
or the imposition of discipline upon an attorney who does not comply
with that duty. [7] We do observe, however, that it is consistent
with an attorney's duty to further the interest of his or her client
for the attorney to take steps to ensure that the premarital agreement
will be enforceable. After discussing the matter with his or her
client, an attorney may convey such information to the other party
as will assist in having the agreement upheld, as long as he or
she does not violate the duty of loyalty to the client or undertake
to represent both parties without an appropriate waiver of the
conflict of interest. We also observe that, obviously, the best
assurance of enforceability is independent representation for both
parties.
III
[8a] Finally, we conclude that the trial court's determination
that Sun voluntarily entered into the premarital agreement in the
present case is supported by substantial evidence.
[9] In determining the voluntariness of a premarital agreement,
a reviewing court should accept such factual determinations of
the trial court as are supported by substantial evidence. (See
In re Marriage of Dawley, supra, 17 Cal.3d at pp. 354-355 [undue
influence is a question of fact; trial court's finding that a party
entered into a prenuptial agreement "voluntarily" implied
a finding that there was no undue influence, and the finding was
supported by substantial evidence]; In re Marriage of Alexander
(1989) 212 Cal.App.3d 677, 682 [261 Cal.Rptr. 9] [determination
as to extrinsic fraud in connection with a marital settlement agreement
is accepted on appeal if supported by substantial evidence]; Estate
of Cantor, supra, 39 Cal.App.3d at p. 548 [trial court's finding
that a party knowingly waived spousal rights in a premarital agreement
was supported by substantial evidence]; Barker v. Barker, supra,
139 Cal.App.2d at p. 211 [in a case examining the voluntariness
of a premarital agreement, trial court's determination that a party
fully understood the purpose and effect of the agreement was supported
by substantial evidence]; La Liberty v. La Liberty, supra, 127
Cal.App. at pp. 673-674 [finding of knowing waiver of spousal rights
in premarital agreement supported by substantial evidence].) Further,
under the familiar tenets of the substantial evidence rule, " 'In
reviewing the evidence on ... appeal all conflicts must be resolved
in favor of the [prevailing party], and all legitimate and reasonable
inferences indulged in [order] to uphold the [finding] if possible.' " (Western
States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559,
571 [38 Cal.Rptr.2d 139, 888 P.2d 1268].)
[8b] The Court of Appeal held the trial court erred in finding
the parties' agreement to be voluntary. The appellate court stressed
the absence of [24 Cal.4th 32] counsel for Sun, and, strictly examining
the totality of the circumstances to determine voluntariness, pointed
to Sun's limited English language skills and lack of "legal
or business sophistication," and stated that she "received
no explanation of the legal consequences to her ensuing from signing
the contract" and "was told there would be 'no marriage'
if she did not immediately sign the agreement." It also referred
to typographical errors and omissions in the agreement, the imminence
of the wedding and the inconvenience and embarrassment of cancelling
it, and Sun's asserted lack of understanding that she was waiving
her statutory right to a community property interest in Barry's
earnings.
The trial court, however, determined that Sun entered into the
premarital contract voluntarily, without being subject to fraud,
coercion, or undue influence, and with full understanding of the
terms and effect of the agreement. It determined that the parties
did not stand in a confidential relationship. fn. 13 The trial
court declared that although, pursuant to a pretrial stipulation,
the burden of proof rested upon Sun, even if the burden were to
rest upon Barry, he had demonstrated by clear and convincing evidence
that the agreement had been entered into voluntarily.
The trial court made specific findings of fact regarding the factors
we have identified as relevant to the determination of voluntariness.
These findings are supported by substantial evidence and should
have been accepted by the Court of Appeal majority—as they
were by the dissenting justice in the Court of Appeal.
The trial court determined that there had been no coercion. It
declared that Sun had not been subjected to any threats, that she
had not been forced to sign the agreement, and that she never expressed
any reluctance to sign the agreement. It found that the temporal
proximity of the wedding to the signing of the agreement was not
coercive, because under the particular circumstances of the case,
including the small number of guests and the informality of the
wedding arrangements, little embarrassment would have followed
from postponement of the wedding. It found that the presentation
of the agreement did not come as a surprise to Sun, noting that
she was aware of Barry's desire to "protect his present property
and future earnings," and that she had been aware for at least
a week before the parties signed the formal premarital agreement
that one was planned. [24 Cal.4th 33]
These findings are supported by substantial evidence. Several
witnesses, including Sun herself, stated that she was not threatened.
The witnesses were unanimous in observing that Sun expressed no
reluctance to sign the agreement, and they observed in addition
that she appeared calm, happy, and confident as she participated
in discussions of the agreement. Attorney Brown testified that
Sun had indicated a desire at their first meeting to enter into
the agreement, and that during the discussion preceding execution
of the document, she stated that she understood the agreement.
As the trial court determined, although the wedding between Sun
and Barry was planned for the day following the signing of the
agreement, the wedding was impromptu —the parties had not
secured a license or a place to be married, and the few family
members and close friends who were invited could have changed their
plans without difficulty. (For example, guests were not arriving
from Sweden.) In view of these circumstances, the evidence supported
the inference, drawn by the trial court, that the coercive force
of the normal desire to avoid social embarrassment or humiliation
was diminished or absent. Finally, Barry's testimony that the parties
early in their relationship had discussed their desire to keep
separate their property and earnings, in addition to the testimony
of Barry and Brown that they had met with Sun at least one week
before the document was signed to discuss the need for an agreement,
and the evidence establishing that Sun understood and concurred
in the agreement, constituted substantial evidence to support the
trial court's conclusion that Sun was not subjected to the type
of coercion that may arise from the surprise and confusion caused
by a last-minute presentation of a new plan to keep earnings and
property separate during marriage. In this connection, certain
statements in the opinion rendered by the Court of Appeal majority—that
Sun was subjected to aggressive threats from financial adviser
Mel Wilcox; that the temporal proximity of the wedding was coercive
under the circumstances of this case; and that defects in the text
of the agreement indicate it was prepared in a rush, came as a
surprise when presented, and was impossible to understand—are
inconsistent with factual determinations made by the trial court
that we have determined are supported by substantial evidence.
With respect to the presence of independent counsel, although
Sun lacked legal counsel, the trial court determined that she had
a reasonable opportunity to obtain counsel. The trial court stated: "Respondent
had sufficient awareness and understanding of her right to, and
need for, independent counsel. Respondent also had an adequate
and reasonable opportunity to obtain independent counsel prior
to execution of the Agreement. Respondent was advised at a meeting
with Attorney Brown at least one week prior to execution of the
Agreement that she had the right to have an attorney represent
her and that Attorneys Brown and Megwa represented Petitioner,
[24 Cal.4th 34] not Respondent. On at least two occasions during
the February 5, 1988, meeting, Respondent was told that she could
have separate counsel if she chose. Respondent declined. Respondent
was capable of understanding this admonition."
These factual findings are supported by substantial evidence.
Brown testified that at the meeting that preceded the February
5, 1988, meeting at which the premarital agreement was executed,
both Sun and Barry indicated they wished to enter into a premarital
agreement, and that Brown informed Sun that he represented Barry
and that therefore it might be in her best interest to have her
own attorney. She declined. Brown testified that at the February
5, 1988, session he explained the basics of community property
law, telling Sun that she would be disavowing the protection of
community property law by agreeing that income and acquisitions
during marriage would be separate property. He informed her of
her right to separate counsel, and told both parties that the agreement
did not have to be signed that day. He again informed Sun that
he represented Barry. He testified that Sun stated that it was
not necessary for her to have counsel, and that she said she understood
how the contract affected her interests under the community property
law. Attorney Megwa also testified that the attorneys discussed
basic community property law with Sun and told her that she had
a right to have her own attorney and that she did not have to sign
the agreement. He testified that the subject of her obtaining her
own counsel came up at least three times during the February 5,
1988, meeting, and that she stated explicitly that she did not
wish to submit the agreement to separate counsel for review. Megwa
testified that he had cautioned Sun that she should not sign the
agreement (which she had reviewed herself and which then had been
explained to her clause by clause) unless it reflected her intentions,
and that she said she understood the agreement.
The Court of Appeal majority rejected the conclusion of the trial
court that Sun understood why she should consult separate counsel.
This determination by the appellate court contradicts the specific
finding of the trial court that Sun understood what was at stake.
The trial court's finding is supported by the language of the agreement
itself, including the indication in paragraph 10 that the earnings
and accumulations of each spouse "during marriage" would
be separate property, and additional language stating that "[w]e
desire by this instrument to agree as to the treatment of separate
and community property after the marriage ...." (Italics added.)
The trial court's finding also was supported by evidence establishing
that the attorneys explained to Sun the rights she would have under
community property law. In addition, Barry testified that ever
since the issue first came up at the beginning of the relationship,
Sun had agreed that the parties' earnings and acquisitions [24
Cal.4th 35] should be separate. Further, the attorneys testified
that during the February 5, 1988, meeting, Sun stated her intent
to keep marital property separate. These circumstances establish
that Sun did not forgo separate legal advice out of ignorance.
Instead, she declined to invoke her interests under the community
property law because she agreed, for her own reasons, that Barry's
and her earnings and acquisitions after marriage should be separate
property.
The Court of Appeal majority surmised that Sun did not have a
reasonable opportunity to consult counsel because a copy of the
agreement was not provided in advance of the February 5, 1988,
meeting, and because Sun had insufficient funds to retain counsel
and was not informed that Barry would pay for independent counsel's
services. Again, this determination is contradicted by the conclusion
of the trial court that Sun had "an adequate and reasonable
opportunity to obtain independent counsel prior to execution of
the Agreement." The trial court's determination was supported
by evidence that Sun had been told about the agreement and her
potential need for counsel at least a week before the document
was executed and that she was told at the February 5, 1988, meeting
that she could consult separate counsel and was not required to
sign the contract that day. Additionally, there was evidence supporting
the inference that she declined counsel because she understood
and agreed with the terms of the agreement, and not because she
had insufficient funds to employ counsel. We agree with the dissenting
justice in the Court of Appeal that the majority's opinion departed
from the appropriate standard of review in this respect. As noted
above, when asked to determine whether a factual determination
is supported by substantial evidence, the reviewing court should
draw all reasonable inferences in favor of the judgment below.
The Court of Appeal, by contrast, recounted evidence from which
a number of inferences could be drawn, and incorrectly chose to
draw those inferences least in favor of the judgment below.
With respect to the question of inequality of bargaining power,
the trial court determined that Sun was intelligent and, evidently
not crediting her claim that limited English made her unable to
understand the import of the agreement or the explanations offered
by Barry's counsel, found that she was capable of understanding
the agreement and the explanations proffered by Barry's attorneys.
There is ample evidence to support the trial court's determination
regarding Sun's English-language skills, in view of the circumstances
that for two years prior to marriage she had undertaken employment
and education in a trade that required such skills, and before
meeting Barry had maintained close personal relationships with
persons speaking only English. In addition, Barry and his witnesses
all testified that Sun appeared to have no language problems at
the time she signed the agreement. [24 Cal.4th 36] Brown and Megwa
testified that Sun indicated at the February 5, 1988, meeting that
she understood the agreement, and indeed the contract contains
a paragraph indicating that the parties attest that they "fully
understand[]" the terms of the agreement. The trial court's
findings with respect to the notice and opportunity Sun received
to obtain independent counsel at least one week before the agreement
was executed, as well as evidence indicating Sun long had known
and agreed that the marriage would entail separation of earnings
and acquisitions, tend to undercut any inference that coercion
arose from unequal bargaining power, including Barry's somewhat
greater sophistication and the involvement of two attorneys and
a financial adviser on Barry's behalf. In addition, although these
persons represented Barry, there is substantial evidence that they
did not pressure Sun or even urge her to sign the agreement. Further,
although Barry had three years of college studies as well as some
experience in negotiating contracts, while Sun had only recently
passed her high school equivalency exam (in English) and had little
commercial experience, there is evidence that Barry did not understand
the legal fine points of the agreement any more than Sun did. In
addition, the basic purport of the agreement—that the parties
would hold their earnings and accumulations during marriage as
separate property, thereby giving up the protection of marital
property law—was a relatively simple concept that did not
require great legal sophistication to comprehend and that was,
as the trial court found, understood by Sun. Finally, we observe
that the evidence supports the inference that Sun was intrepid
rather than a person whose will is easily overborne. She emigrated
from her homeland at a young age, found employment and friends
in a new country using two languages other than her native tongue,
and in two years moved to yet another country, expressing the desire
to take up a career and declaring to Barry that she "didn't
want his money." These circumstances support the inference
that any inequality in bargaining power—arising primarily
from the absence of independent counsel who could have advised
Sun not to sign the agreement or urged Barry to abandon the idea
of keeping his earnings separate—was not coercive.
With respect to full disclosure of the property involved, the
trial court found that Sun was aware of what separate property
was held by Barry prior to the marriage, and as the Court of Appeal
noted, she failed to identify any property of which she later became
aware that was not on the list of property referred to by the parties
when they executed the contract. The trial court also determined
that Sun was aware of what was at stake—of what normally
would be community property, namely the earnings and acquisitions
of the parties during marriage. Substantial evidence supports this
conclusion, including Sun's statements to Barry before marriage,
the terms used in the contract, and Brown's and Megwa's testimony
that they painstakingly explained this matter to Sun. [24 Cal.4th
37]
With respect to the question of knowledge, as already explained
it is evident that the trial court was impressed with the extent
of Sun's awareness. The trial court did not credit her claim that
before the premarital agreement was presented to her, the parties
never had discussed keeping their earnings and acquisitions separate
during marriage. Nor did the trial court credit her claim that
the subject and content of the agreement came as a surprise to
her, or that she did not understand that absent the agreement,
she would be entitled to share in Barry's earnings and acquisitions
during marriage. The finding that she was sufficiently aware of
her statutory rights and how the agreement "adversely affected
these rights" is supported by the testimony of Barry, Brown,
and Megwa that the attorneys explained these matters before Sun
signed the agreement. In addition, as noted, Barry testified that
he and Sun agreed long before their marriage that their earnings
and acquisitions would remain separate. fn. 14
The factors we have identified in assessing the voluntariness
of the agreement entered into between Barry and Sun are not rigidly
separate considerations; rather the presence of one factor may
influence the weight to be given evidence considered primarily
under another factor. In this respect, the trial court's finding
that Sun had advance knowledge of the meaning and intent of the
agreement and what was at stake for her is influential, as we have
seen, in considering some of the other factors.
In considering evidence that Sun responded to Barry's suggestion
that she secure independent counsel with the observation that she
did not need counsel because she had nothing, the Court of Appeal
majority drew the inference least in support of the judgment—namely,
that this statement indicated Sun did not understand that she did
have property interests at stake in the form of the community property
rights that would accrue to her under applicable statutes, in the
absence of a premarital agreement. We believe that this was error
on the part of the appellate court, because substantial evidence
supported the trial court's determination to the contrary. It is
clear from the testimony of Brown and Megwa that, even if Sun did
not peruse the entire document herself, they read it to her paragraph
by paragraph, thoroughly explaining the matter to her. Barry's
testimony further established that he and Sun had agreed from the
beginning of their relationship that each would forgo any interest
in the other's earnings and acquisitions during marriage.
Family Code section 1615 places on the party seeking to avoid
a premarital agreement the burden of demonstrating that the agreement
was involuntary. The trial court determined that Sun did not carry
her burden, and we [24 Cal.4th 38] believe that its factual findings
in support of this conclusion are supported by substantial evidence.
IV
The judgment of the Court of Appeal is reversed to the extent
that it reversed the judgment of the trial court on the issue of
the voluntariness of the premarital agreement. The matter is remanded
to the Court of Appeal to determine whether, consistent with this
opinion, its remand to the trial court for reevaluation of the
termination of spousal support remains necessary, and to consider
other issues it declared moot in light of its determination that
the agreement was not enforceable: namely, (1) whether the trial
court denied Sun due process by excluding evidence supporting her
claim that Barry should be estopped from enforcing the agreement,
and (2) whether the trial court erred in various respects in interpreting
and enforcing the agreement. fn. 15
Mosk, J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and
Brown, J., concurred.
Appellant's petition for a rehearing was denied October 18, 2000.
-FN 1. Primarily at issue is paragraph 10 of the agreement, which
provided, in pertinent part, as follows: "Control and Earnings
of Both Husband and Wife During Marriage. We agree that all the
earnings and accumulations resulting from the other's personal
services, skill, efforts and work, together with all property acquired
with funds and income derived therefrom, shall be the separate
property of that spouse.
The earnings from husband and
wife during marriage shall be: separate property of that
spouse." The agreement also contained provisions concerning
support obligations and the disposition of property upon dissolution
of the marriage, including a proviso that "Each of us shall
receive free and clear of all claim of the other spouse that property
which was the separate property of each spouse prior to marriage
... and as may be later acquired as separate property."
-FN 2. The Court of Appeal also directed that the issue of the
division of property pursuant to the agreement and the issue of
the duration of spousal support be retried, and affirmed the judgment
regarding child support. Those issues are not before us.
-FN 3. See Stone, The Family, Sex and Marriage in England 1500-1800
(Harper 1979) pages 29-31 (in earlier times, marriage was seen
in England as a "private contract between two families concerning
property exchange, which also provided some financial protection
to the bride in case of the death of her husband or desertion ...
by him"); Note, Planning for Love: The Politics of Prenuptial
Agreements (1997) 49 Stan. L.Rev. 887, 905; Younger, Perspectives
on Antenuptial Agreements (1988) 40 Rutgers L.Rev. 1059, 1060;
Shakespeare, Taming of the Shrew, act II, scene 1, lines 135-139.
-FN 4. See Snyder v. Webb (1853) 3 Cal. 83, 87 (parties may enter
into agreement deviating from statutory provisions regarding marital
property); In re Appleby's Estate (1907) 100 Minn. 408 [111 N.W.
305, 307]; see also Brooks v. Brooks (Alaska 1987) 733 P.2d 1044,
1048-1049, footnote 4, and cases cited.
-FN 5. See Matter of Estate of Lebsock (1980) 44 Colo.App. 220
[618 P.2d 683, 685-686] (premarital agreement may be set aside
for fraud or concealment, but advice of independent counsel is
not a prerequisite to enforcement; parties should have some understanding
of their rights and of the assets of the other party); Hafner v.
Hafner (Minn. 1980) 295 N.W.2d 567, 571 (observing, in enforcing
an agreement, that the party challenging the agreement was reasonably
intelligent and experienced, though lacking much formal education,
and that she was aware of the intent of the agreement); In re Marriage
of Coward (1978) 35 Or.App. 677 [582 P.2d 834, 835-836] (noting,
among other factors, that the agreement had been discussed prior
to the engagement and that both parties were experienced in the
business world and fully aware of the intent of the agreement);
Lutgert v. Lutgert, supra, 338 So.2d at pages 1113-1117 (agreement "sprung" on
a reluctant and objecting prospective wife at jeweler's shop the
day of the wedding and a planned cruise; the only legal advice
came from prospective husband's attorneys; the agreement was grossly
disproportionate, and the prospective husband had far greater bargaining
power); Del Vecchio v. Del Vecchio (Fla. 1962) 143 So.2d 17, 19-21
(a voluntary agreement may be enforced even if it appears unfair,
if the party seeking enforcement proves that the burdened party
had knowledge of the other party's assets and of the rights being
waived); In re Kaufmann's Estate, supra, 171 A.2d at pp. 50-51
(agreement enforced in light of full disclosure and knowledge of
the financial status of the other party).
-FN 6. See cases cited in footnote 5, ante.
-FN 7. See Civil Code section 1670.5, based upon section 2-302
of the Uniform Commercial Code; Perdue v. Crocker National Bank
(1985) 38 Cal.3d 913, 925, footnote 10 [216 Cal.Rptr. 345, 702
P.2d 503]; see also the Restatement Second of Contracts, section
208.
-FN 8. See Senate Committee on Judiciary, Report on Senate Bill
No. 1143 (1985-1986 Reg. Sess.) page 2; Assembly third reading
digest of Senate Bill No. 1143 (1985-1986 Reg. Sess.), as amended
August 28, 1985, page 3.
-FN 9. The few state courts that have applied the Uniform Act
after its adoption in their particular states have not examined
closely the voluntariness requirement. One decision, in which the
party challenging the agreement did not contend that he entered
into it involuntarily, conflates the procedural and substantive
fairness elements of unconscionability and, with respect to the
requirement of procedural fairness, examines the relative age and
sophistication of the parties and the absence of fraud, duress,
or overreaching. (Marsh v. Marsh (Tex.App.1997) 949 S.W.2d 734,
741-742.) With little discussion, that decision rejected claims
that the imminence of the wedding and the absence of independent
counsel should render the agreement unenforceable, and refused
to accept the objecting party's failure to read the agreement as
a ground for voiding it. (Id. at p. 741.) In a Rhode Island case
applying that state's version of the Uniform Act, the voluntariness
of the agreement was conceded (Penhallow v. Penhallow (R.I. 1994)
649 A.2d 1016, 1021-1022), and under that state's particular enactment
an agreement is unenforceable only if it is both involuntary and
unconscionable. One court has referred to inequality of bargaining
power and of sophistication between the parties, and identified
knowledge of what is being relinquished as an element of voluntariness.
(See Matter of Estate of Lutz (1997) 1997 N.D. 82 [563 N.W.2d 90,
97-98] [indicating that the presence of independent counsel is
the best indication that the disadvantaged party understood the
effect of the agreement].)
-FN 10. See, for example, In re Marriage of Spiegel, supra, 553
N.W.2d 309, 317-318 (voluntariness depends in part upon an intentional
relinquishment of a known right; the proximity of the wedding,
a threat not to wed without an agreement, and embarrassment over
the potential cancellation of the wedding do not constitute duress
or undue influence, particularly because the party attacking the
agreement was intelligent and educated and had the advice of independent
counsel); Lebeck v. Lebeck (1994) 118 N.M. 367 [881 P.2d 727, 732-734]
(shortness of time between agreement and wedding and desire of
woman to marry to legitimize a child are not alone enough to establish
involuntariness; wife failed to carry burden of proof of involuntariness
in that she was 34 years of age, worked as a professional, had
independent counsel, and understood the agreement, and the "threat" not
to marry without the agreement does not constitute duress but is
a legitimate objective); Fick v. Fick (1993) 109 Nev. 458 [851
P.2d 445, 449] (voluntariness depends upon the opportunity to consult
independent counsel, the absence of coercion, the business acumen
of the parties, the parties' awareness of each other's assets,
and the parties' understanding regarding the rights being forfeited);
Lee v. Lee (1991) 35 Ark.App. 192 [816 S.W.2d 625, 627-628] (although
the wedding was soon to occur, there was no pressure to sign the
agreement; husband's desire to maintain separate property had been
discussed in advance; assets were disclosed, and the failure of
the party challenging the agreement to read it before signing was
no excuse); Tiryakian v. Tiryakian (1988) 91 N.C.App. 128 [370
S.E.2d 852, 854] (premarital agreement was involuntary because
of proximity of wedding and because there was no disclosure of
assets, no knowledge of the effect of the agreement, and no independent
counsel).
-FN 11. Under California law, even in the absence of a confidential
or fiduciary relationship, a contract may be void if the person
seeking relief proves undue influence. (See Civ. Code, § 1575.)
In such circumstances, the plaintiff must prove that the defendant
took unfair advantage of the plaintiff's weakness of mind or "grossly
oppressive and unfair advantage of another's necessities or distress." (Ibid.)
The court hearing such a claim will consider matters such as the
substantial weakness of the person influenced or the excessive
strength of the other party, taking into account factors such as
the transaction having occurred at an unusual or inappropriate
time or place, an insistent demand that the business be concluded
immediately without recourse to independent advisers and an extreme
emphasis on the negative consequences of delay, the concurrence
of several persons in influencing the weaker party, and the absence
of an independent adviser for that person. (Odorizzi v. Bloomfield
School Dist. (1966) 246 Cal.App.2d 123, 133 [54 Cal.Rptr. 533];
1 Witkin, Summary of Cal. Law, supra, Contracts, § 428, pp.
384-385.)
-FN 12. A North Dakota case decided after that state's adoption
of the Uniform Act referred to the possibility that an agreement
to marry may create a fiduciary relationship, but that decision
did not impose any presumption of undue influence. (Matter of Estate
of Lutz, supra, 563 N.W.2d at p. 98.) Another case interpreting
an agreement under the Uniform Act did not discuss the confidential
relationship doctrine, but clearly placed the burden of establishing
every fact relevant to a determination of voluntariness upon the
person attacking the agreement. (Marsh v. Marsh, supra, 949 S.W.2d
at p. 739; see also Penhallow v. Penhallow, supra, 649 A.2d at
p. 1021 [referring to the heavy burden of proof placed by the Uniform
Act upon the person seeking to avoid the agreement].)
-FN 13. Sun claimed that she demonstrated that a confidential
relationship actually existed, through evidence of her financial
dependence on and trust in Barry and her testimony that she entered
into the agreement under a misapprehension as to its meaning. The
trial court's contrary finding is supported by evidence, noted
below, that Sun had her own career plans, that the parties long
had planned to keep their earnings and acquisitions separate, and
that Sun understood the contract and entered into it because it
reflected her intent.
-FN 14. Sun's contention that she could not have understood the
agreement because it contained typographical errors and omitted
a schedule of Barry's separate property is inconsistent with the
trial court's determination that she did understand the agreement,
including its application to premarital separate property, a determination
supported by substantial evidence.
-FN 15. Specifically, with respect to the second issue, Sun claimed
in the Court of Appeal that in applying the premarital agreement,
the trial court erred in interpreting the effect of the parties'
failure to complete community property schedules, in determining
whether certain purchases constituted a gift to the community or
a transmutation pursuant to the premarital agreement, and in calculating
any right to reimbursement for separate property contributions
to jointly held property. In re Marriage of Pendleton & Fireman
(2000) 24 Cal.4th 39 , 99 Cal.Rptr.2d 278; 5 P.3d 839 [No. S070018.
Aug. 21, 2000.]
In re Marriage of CANDACE PENDLETON
and BARRY I.
FIREMAN. CANDACE PENDLETON, Respondent, v. BARRY I. FIREMAN, Appellant.
(Superior Court of Los Angeles County, No. SD010709, Keith Clemens,
Commissioner.)
(The Court of Appeal, Second Dist., Div. One, No. B113293.)
(Opinion by Baxter, J., with Werdegar, Chin, Brown, JJ., and Hastings,
J., fn. * concurring. Concurring opinion by Mosk, Acting C. J.
(see p. 54). Dissenting opinion by Kennard, J. (see p. 54).)
COUNSEL
Lascher & Lascher, Wendy C. Lascher; Wasser, Rosenson & Carter
and John Foley for Appellant.
Kolodny & Anteau, Ronald W. Anteau, Peter Hermes and James
L. Keane for Respondent. [24 Cal.4th 41]
OPINION
BAXTER, J.-
We are asked to decide whether a premarital agreement in which
the parties to be married waive the right to spousal support in
case of dissolution is enforceable. fn. 1 The Court of Appeal held
that such agreements are enforceable. It is not necessary to decide
in this case whether all such agreements are enforceable regardless
of the circumstances of the parties at the time enforcement is
sought. We conclude that no policy of this state makes an agreement
like that entered into by the parties to this action per se unenforceable,
and affirm the judgment of the Court of Appeal.
I. Background
Candace Pendleton and Barry I. Fireman married on July 13, 1991.
On July 1, 1991, they had executed a premarital agreement which
provided, inter alia: "[B]oth parties now and forever waive,
in the event of a dissolution of the marriage, all rights to any
type of spousal support or child support from the other; ..." The
agreement acknowledged that each party had been represented by
independent counsel in the negotiation and preparation of the agreement,
that counsel had advised each of the meaning and legal consequences
of the agreement, and that each party had read and understood the
agreement and its legal consequences. Their respective counsel
certified that this had been done and that their clients understood
the meaning and legal consequences of the agreement and executed
it freely and voluntarily. [24 Cal.4th 42]
The couple separated in 1995, and on April 3, 1996, Candace filed
a petition for dissolution of the marriage and subsequently sought
spousal support. Candace acknowledged the existence of a premarital
agreement in a declaration that accompanied her request for spousal
support, stating that she was then investigating its validity.
At the time the dissolution petition was filed, each party had
a net worth of approximately $2.5 million. Candace, who had two
children from a prior marriage, held a master's degree and was
an aspiring writer. Barry, who held a doctorate in pharmacology
and a law degree, was a businessman with ownership interests in
numerous companies and business ventures. Candace declared that
her monthly gross income was $5,772, consisting of $1,352 in Social
Security benefits for two children from a prior marriage, $2,000
from a brokerage account, and $2,420 in rental income. Her net
monthly income was $4,233.
Barry sought to strike the pleading seeking support or to have
a separate trial on the validity of the prenuptial agreement. The
court denied the motion for separate trial, concluding that discovery
on the issue of validity would overlap that on other issues and
would not result in saving time or litigation costs. The court
ruled that the waiver of spousal support was against public policy
and thus was unenforceable, fn. 2 noted that the couple had maintained
a lifestyle in the high $20,000 to $32,000 per month range, and
ordered Barry to pay temporary spousal support of $8,500 per month.
[24 Cal.4th 43]
On Barry's appeal, the Court of Appeal reversed the order for
temporary spousal support. The Court of Appeal acknowledged that
the Legislature had deleted subdivision (a)(4) from section 3 of
the Uniform Premarital Agreement Act (Uniform Act) prior to adopting
the act in 1985. fn. 3 The omitted subdivision would have expressly
permitted the parties to a premarital agreement to contract with
respect to modification or elimination of spousal support. (See
9B West's U. Laws Ann. (1987) U. Premarital Agreement Act (1983) § 3,
pp. 373-374.) The Court of Appeal concluded, however, that the
Legislature intended to leave the question of whether spousal support
waivers in premarital agreements violate public policy to the courts
and that there was presently no authority governing the public
policy question. In reaching the latter conclusion, the court reasoned
that the question had not been reconsidered after the adoption
of the Family Law Act of 1969 (Civ. Code, former § 4000 et
seq.), which repealed the law permitting divorce only on a showing
of fault, or in light of current law that gives both spouses equal
control over management and control of community property (Fam.
Code, §§ 1100-1103) and mandates equal division on dissolution
(Fam. Code, § 2550). In the view of the Court of Appeal, the
current state of family law is one that "should not per se
prohibit premarital spousal support waivers or limitations. All
the protection the parties need is expressly provided by the California
[version of the Uniform] Act." The Court of Appeal therefore
remanded the matter to the trial court which, in the belief that
such waivers were per se unenforceable, had not determined whether
this agreement was enforceable under the rules set forth in section
1615 and the policies underlying the Uniform Act and the California
version thereof. fn. 4 [24 Cal.4th 44]
II. Discussion
Article 2 of the California Uniform Premarital Agreement Act (§ 1610
et seq.) governs premarital agreements. A premarital agreement
is "an agreement between prospective spouses made in contemplation
of marriage and to be effective upon marriage." (§ 1610,
subd. (a).) Section 1612 specifies the permissible objects of a
premarital agreement:
"(a) Parties to a premarital agreement may contract with
respect to all of the following:
"(1) The rights and obligations of each of the parties in
any of the property of either or both of them whenever and wherever
acquired or located.
"(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
property.
"(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
event.
"(4) The making of a will, trust, or other arrangement to
carry out the provisions of the agreement.
"(5) The ownership rights in and disposition of the death
benefit from a life insurance policy.
"(6) The choice of law governing the construction of the
agreement.
"(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
"(b) The right of a child to support may not be adversely
affected by a premarital agreement."
As noted, ante, the California version of the Uniform Act omits
subdivision (a)(4) of section 3 of the Uniform Act (subdivision
(a)(4)). When first introduced on March 7, 1985, Senate Bill No.
1143 (1985-1986 Reg. Sess.) (Senate Bill 1143), the California
version of the Uniform Act, included subdivision (a)(4), and thus
listed among the permissible subjects of a premarital agreement "the
modification or elimination of spousal support." The spousal
support waiver provision was deleted by amendment. (Assem. [24
Cal.4th 45] Amend. to Sen. Bill No. 1143 (1985-1986 Reg. Sess.)
Aug. 28, 1985.) The amendment of Senate Bill 1143 that deleted
subdivision (a)(4) simultaneously deleted a provision, subdivision
(b) of section 6 of the Uniform Act, which provided: "If a
provision of a premarital agreement modifies or eliminates spousal
support and that modification or elimination causes one party to
the agreement to be eligible for support under a program of public
assistance at the time of separation or marital dissolution, a
court, notwithstanding the terms of the agreement, may require
the other party to provide support to the extent necessary to avoid
that eligibility." (Sen. Bill No. 1143 (1985-1986 Reg. Sess.)
Mar. 7, 1985; Assem. Amend. to Sen. Bill No. 1143 (1985-1986 Reg.
Sess.) Aug. 28, 1985.) As enacted, Senate Bill 1143 became Civil
Code former section 5315, now Family Code section 1612.
The Court of Appeal held that neither the Legislature's deletion
from the legislation of express authorization for premarital waivers
of spousal support, nor past cases refusing to enforce waivers
of spousal support, preclude such waivers today. The court reasoned
that the legislative history of section 1612 suggested that, in
omitting subdivision (a)(4) of the Uniform Act, the Legislature
intended to leave the enforceability of spousal support waivers
to the courts. It found support for that conclusion in two reports
by the Assembly Subcommittee on Administration of Justice. The
first was prepared for an August 19, 1985, hearing on Senate Bill
1143. Senate Bill 1143 repealed prior statutory law governing premarital
agreements and enacted the Uniform Act. In the first report staff
advised that California courts did not permit enforcement of premarital
agreements on spousal support and recommended deletion "to
allow California case law to continue to prevail on the issue of
spousal support in premarital agreements." (Assem. Subcom.
on Admin. of Justice, Rep. on Sen. Bill No. 1143 (1985-1986 Reg.
Sess.) for Aug. 19, 1985, hearing, p. 3.)
The second report, prepared after the amendment passed, stated
that as a result of the amendment "California case law would
... prevail on the issue of spousal support in premarital agreements.
There is a split in authority among the states as to whether
a premarital agreement may control on the issue of spousal support.
Some states, such as California, do not permit a premarital agreement
to control this issue. See In re Marriage of Dawley, 17 Cal.3d
342 [131 Cal.Rptr. 3, 551 P.2d 323] (1976), in which the court
notes that the enforcement of provisions in premarital contracts
to waive or limit spousal support rights is barred because such
provisions are considered promotive of divorce." (Assem. Subcom.
on Admin. of Justice, Rep. on Sen. Bill No. 1143 (1985-1986 Reg.
Sess.) as amended Aug. 28, 1985, p. 3.) The Court of Appeal understood
this history to mean that the Legislature recognized that enforceability
of spousal support waivers is a question for the courts, not the
Legislature. [24 Cal.4th 46]
At the time the California version of the Uniform Act was adopted,
this court had held that agreements waiving the right to spousal
support were unenforceable as being against public policy if the
waiver would promote or encourage dissolution. This court had held
in In re Marriage of Higgason (1973) 10 Cal.3d 476, 485 [110 Cal.Rptr.
897, 516 P.2d 289] (Higgason), speaking of both spousal support
and property division, that to be valid, premarital agreements
must be made "in contemplation that the marriage relation
will continue until the parties are separated by death. Contracts
which facilitate divorce or separation by providing for a settlement
only in the event of such an occurrence are void as against public
policy. [Citations.] Insofar as an antenuptial agreement
relates to the disposition of the property of the respective parties,
and does not seek to alter support obligations imposed by law,
it will be upheld." At issue in Higgason was an agreement
in which both husband and wife waived all interest in the property
of the other party as well as the right to support. The court concluded
that a purported waiver was invalid as against public policy insofar
as the agreement sought to alter the wife's statutory obligation
to support the husband during marriage. The court also held that
the agreement did not preclude exercise of the court's discretionary
power to award postdissolution support. (10 Cal.3d at pp. 487-488.)
Although the basis for the latter holding is not made clear in
the opinion, it appears to be that married persons assume, by means
of the marriage contract, an obligation for support that continues
throughout the lifetime of the parties regardless of whether they
live together or apart, and any agreement to waive that obligation
is also unenforceable.
When the issue of enforceability of premarital agreements next
arose in In re Marriage of Dawley (1976) 17 Cal.3d 342 [131 Cal.Rptr.
3, 551 P.2d 323] (Dawley), where the parties had agreed before
marriage that the earnings and property acquired during marriage
would be held as separate property, the court concluded that Higgason
had misstated the law in stating that premarital agreements must
be made in contemplation that the marriage would continue throughout
the lifetime of the parties and disapproved that Higgason dictum.
(Dawley, at p. 352.) We also explained that, apart from Higgason, "California
courts have uniformly held that contracts offend the state policy
favoring marriage only" if, objectively viewed, by its terms
the contract promotes dissolution of marriage. (Dawley, at p. 350.)
We noted in Dawley that in two cases (Barham v. Barham (1949) 33
Cal.2d 416 [202 P.2d 289] and Whiting v. Whiting (1923) 62 Cal.App.
157 [216 P. 92]) provisions in agreements that waived or limited
spousal support rights had been invalidated on the basis that they
promoted divorce, while other provisions containing property divisions
were enforced; but Dawley did not endorse or otherwise approve
those decisions. (Dawley, supra, 17 Cal.3d at p. 351.) [24 Cal.4th
47] Notably, in Dawley we did not distinguish premarital agreements
governing property rights and those governing spousal support.
Our discussion of the enforceability of premarital agreements in
no way suggested that spousal support waivers were per se unenforceable.
The rule we stated was: "[A]n antenuptial agreement violates
the state policy favoring marriage only insofar as its terms encourage
or promote dissolution." (Id. at p. 352.) fn. 5
The parties have not called our attention to any legislative history
other than the two legislative reports, the latter of which did
not accurately state the holding of this court in Dawley, fn. 6
and neither of which adequately explains the legislative purpose
in omitting subdivision (a)(4). Two possible interpretations of
the Legislature's intent in omitting express authority for premarital
waivers of spousal support come to mind. The Legislature may have
intended to deny couples the right to enter into any premarital
agreement regarding spousal support by adopting what the committee
report erroneously described as the existing case law under which
premarital waivers would be per se unenforceable. Alternatively,
the Legislature may have concluded that policy governing spousal
support agreements, having been established by the court in the
past, should continue to evolve in the court.
The public policy under which waivers of spousal support once
were held unenforceable was explained in Loveren v. Loveren (1895)
106 Cal. 509, 512 [24 Cal.4th 48] [39 P. 801], quoting Phillips
v. Thorp (1883) 10 Or. 494, 496-497 [1883 WL 1110]: " 'The
authorities are uniform in holding that any contract between the
parties having for its object the dissolution of the marriage contract,
or facilitating that result, such as an agreement by the defendant
in a pending action for divorce to withdraw his or her opposition
and to make no defense, is void as contra bonos mores'; and that
courts 'will esteem it their duty to interfere, upon their own
motion, whenever it appears the dissolution is sought to be effected
by the connivance or collusion of the parties.' " fn. 7 (See
also Pereira v. Pereira (1909) 156 Cal. 1, 5 [103 P. 488].) Another
concern was that a man should not be able to contract before marriage
against the liability to his wife that he would incur should he
commit offenses against the wife during the marriage. (See Barham
v. Barham, supra, "33 Cal.2d at p. 428.) The rule those decisions
implemented found its origin in the common law, but the policy
had been declared by the Legislature in 1872 with the adoption
of the Civil Code. Former section 159 of the Civil Code then provided: "A
husband and wife cannot, by any contract with each other, alter
their legal relations, except as to property, ... and except that
they may agree to an immediate separation, and may make provision
for the support of either of them and of their children during
such separation." fn. 8
Barry suggests, and we agree, that changes in the law governing
the spousal relation warrant reexamination of the assumptions and
policy underlying the refusal to enforce waivers of spousal support.
We may not do so, however, if the Legislature intends that section
1612 control the permissible subjects of a premarital agreement
and that public policy with respect to waiver of spousal support
no longer be governed by the common law subject to reconsideration
and development by the courts. (Cf. Rodriguez v. Bethlehem Steel
Corp. (1974) 12 Cal.3d 382, 394 [115 Cal.Rptr. 765, 525 P.2d 669].)
[1] It is clear that the Legislature understood that the omission
of authorization for premarital waivers of spousal support in section
1612 would leave the law as it was in 1985. The subcommittee reports
reflect that understanding. We do not agree with respondent and
the dissent, however, that in so doing the Legislature thereby
abrogated the role of the courts in developing the law governing
premarital waivers of spousal support. We will not presume that
the Legislature intended that the law remain static. It would be
unreasonable to assume that the Legislature intended the common
law of the 19th century to govern the marital relationship in the
21st century. The [24 Cal.4th 49] most reasonable understanding
of the Legislature's purpose when it omitted subdivision (a)(4)
is that it was satisfied with the evolution of the common law governing
premarital waivers of spousal support and intended to permit that
evolution to continue. Had the Legislature intended to forbid spousal
support waivers, it is logical to assume that it would have done
so by expressly including spousal support in subdivision (b) of
section 1612, which reads: "The right of a child to support
may not be adversely affected by a premarital agreement." We
agree with the Court of Appeal, therefore, that the court is free
to reexamine the assumptions that underlie the common law rule
that premarital spousal support waivers promote dissolution and
for that reason contravene public policy. [2] Having done so, we
also agree with the Court of Appeal that the common law policy,
based on assumptions that dissolution of marriage is contrary to
public policy and that premarital waivers of spousal support may
promote dissolution, is anachronistic.
Some 41 jurisdictions have already abandoned the common law restrictions
on premarital waivers of spousal support. In 21 jurisdictions,
premarital waivers of spousal support are authorized by statutes
that either adopt all or substantially all of the provisions of
the Uniform Act. fn. 9 One jurisdiction (New York) had other statutory
authorization for such waivers, fn. 10 and in another 18 the right
to enforce a premarital waiver of spousal support exists pursuant
to judicial decision. fn. 11 [24 Cal.4th 50]
The changes in public policy and the attitude toward marriage,
already reflected in Dawley, supra, 17 Cal.3d 342, are made manifest
by contrasting the current statutory treatment of marriage and
premarital agreements with an early decision of the Oregon Supreme
Court that reflects the 19th-century view of public policy regarding
marriage. "The welfare of society is so deeply interested
in the preservation of the marriage relation, and so fraught with
evil is regarded whatever is calculated to impair its usefulness,
or designed to terminate it, that it has long been the settled
policy of the law to guard and maintain it with a watchful vigilance.
Although marriage, in the eye of the law, is a civil contract,
unlike any other civil contract, it cannot be rescinded or annulled
by consent of the parties to it. By mutual consent, if the parties
are of the proper age and capacity, the marriage relation may be
created and receive the sanction of the law, but it cannot dissolve
or terminate it. That high office can only be performed by a court
of competent jurisdiction, for some specified cause prescribed
by law, upon proof taken in a suit for that purpose. The good order
and well being of society, as well as the laws of this state, require
this. And so strict and careful are courts in the administration
of this justice, out of regard for the public morals and the general
welfare of society, that they will esteem it their duty to interfere
upon their own motions whenever it appears the dissolution is sought
to be [24 Cal.4th 51] effected by the connivance or collusion of
the parties; and all contrivances or agreements, having for their
object the termination of the marriage contract, or designed to
facilitate or procure it, will be declared illegal and void as
against public policy.... ' ... And when the marriage relation
has been assumed, it is equally the policy of the law to sustain
and uphold it. It, therefore, holds all contracts void which contemplate
or provide for the future separation of the parties ....' " (Phillips
v. Thorp, supra, 10 Or. at pp. 495-496.)
California statutory law of the time reflected these policies
and values. In 1872, divorce could be granted only on the grounds
of adultery, extreme cruelty, willful desertion, willful neglect,
habitual intemperance, or conviction of a felony, and could be
denied on grounds, inter alia, of connivance or collusion—the "corrupt
consent" by one party to the other's commission of an act
constituting cause for divorce or an agreement between the parties
that one should commit, appear to commit, or represent to the court
that one had committed such an act. (Civ. Code, former §§ 92,
111-114.) The husband had exclusive control of the community property
with "absolute power of disposition (other than testamentary)
as he ha[d] of his separate estate" (Civ. Code, former § 172)
and a wife could not contract for the payment of money. (Civ. Code,
former § 167.) The court was empowered to order the husband
to pay alimony on divorce if the divorce was granted for an offense
of the husband (Civ. Code, former § 139), but had no power
to order a wife to pay alimony.
The assumptions underlying the refusal to enforce premarital waivers
of spousal support were that the state had a vital interest in
and should act to ensure the permanency of the marriage relation
(Pereira v. Pereira, supra, 156 Cal. at p. 5), and that this interest
was undermined by such waivers, assumptions reflected in statutory
law governing marriage, dissolution, and property rights. In Dawley,
supra, 17 Cal.3d at page 353, however, we emphasized that only
agreements that on their face promote dissolution violate the public
policy favoring marriage. We recognized there that contemporary
attitudes toward the marriage relationship are more pragmatic: "In
recent years, however, an increasing number of couples have executed
antenuptial agreements in order to structure their legal relationship
in a manner more suited to their needs and values. (See generally,
Weitzman, Legal Regulation of Marriage: Tradition and Change (1974)
62 Cal.L.Rev. 1169.) Neither the reordering of property rights
to fit the needs and desires of the couple, nor realistic planning
that takes account of the possibility of dissolution, offends the
public policy favoring and protecting marriage. It is only when
the terms of an agreement go further—when they promote and
encourage dissolution, and thereby threaten to induce the destruction
of a [24 Cal.4th 52] marriage that might otherwise endure—that
such terms offend public policy." (Dawley, supra, 17 Cal.3d
at p. 358.)
Both public attitude and contemporary official policy have changed
substantially over the past century. Public policy continues to
favor and encourage marriage, but it now acknowledges that lifetime
commitment is no longer the norm. When legitimate grounds for dissolution
exist, dissolution does not contravene public policy, but is the
preferred solution. (Glickman v. Collins (1975) 13 Cal.3d 852,
858-859 [120 Cal.Rptr. 76, 533 P.2d 204, 93 A.L.R.3d 513].) The
adoption of the California Uniform Premarital Agreement Act itself
reflects recognition that permanency is no longer a dominant characteristic
of modern marriage. The Family Law Act of 1969 (Civ. Code, former § 4000
et seq.) permitted, and now the Family Code permits, no-fault dissolution.
(§ 2310.) A stipulation governing division of community property,
once held in reliance on Phillips v. Thorp, supra, 10 Or. 494,
to be collusive and to violate public policy (Loveren v. Loveren,
supra, 106 Cal. at p. 512), today is expressly allowed (§§ 2550,
2554), encouraged, and no longer condemned as facilitating dissolution.
(Dawley, supra, 17 Cal.3d at p. 350, fn. 5.) Spouses who are separated
have long been permitted to contract with regard to division of
property and to include provisions for spousal support on dissolution,
even when community property was evenly divided and thus the division
was not consideration for the modification of spousal support rights.
(Dexter v. Dexter (1954) 42 Cal.2d 36, 43-44 [265 P.2d 873].) The
right of husband and wife to agree in writing to separate and provide
for spousal support both during separation and on dissolution of
the marriage continues to be expressly recognized by statute. (§ 3580.)
Legal recognition also has been given to the changing position
of married women who, in increasing numbers, are employed outside
the home and have been given equal right to management of the property
of the community as well as primary right to manage businesses
they are operating. (§ 1100.) Public policy toward spousal
support has also changed. While spouses must support each other
during marriage (§ 4300), the court has been given greater
discretion in marital dissolutions to deny spousal support altogether
or to limit such support in an amount and duration that reflects
the ability of both parties in contemporary unions to provide for
their own needs. (§§ 4330, 4320.) The changing attitudes
are reflected in the 1969 repeal of former section 139 of the Civil
Code (enacted 1872), which authorized the court to award lifetime
support if a divorce was based on an offense of the husband. (Stats.
1969, ch. 1608, § 3, p. 3313.) The underlying theory, we explained
was then " 'that the husband entered upon an obligation which
bound him to support his wife during the period of their joint
lives, that by his own wrong he has forced her to sever the relation
which enabled [24 Cal.4th 53] her to compel the performance of
this duty, and that he is required to make compensation for the
offense committed by him which has deprived her of the benefit
of the obligation.' (Arnold v. Arnold [(1946)] 76 Cal.App.2d 877,
885-886 [174 P.2d 674].)" (Webber v. Webber (1948) 33 Cal.2d
153, 157-158 [199 P.2d 934].) Today, however, a court ordering
spousal support must consider, inter alia, "[t]he goal that
the supported party shall be self-supporting within a reasonable
period of time." (§ 4320, subd. (k).) The law has thus
progressed from a rule that entitled some women to lifelong alimony
as a condition of the marital contract of support to one that entitles
either spouse to postdissolution support for only so long as necessary
to become self-supporting.
These changes in the relationship between spouses and support
obligations in particular, accurately described by the Court of
Appeal as "dramatic" and by a legal commentator as a "sea
change" (Ellman, The Theory of Alimony (1989) 77 Cal. L.Rev.
1, 7), clearly warrant reassessment of what remains of the rule
that premarital waivers of spousal support may promote dissolution
and, if they do so, are unenforceable. Public policy, to the extent
that it is reflected in these legislative acts, no longer reflects
concern that premarital waivers of property rights threaten the
marriage relationship. Section 1612 expressly permits the parties
to contract with regard to numerous property rights, including "[t]he
disposition of property upon separation, marital dissolution, death,
or the occurrence or nonoccurrence of any other event." (§ 1612,
subd. (a)(3).) No basis appears on which to distinguish premarital
waivers of spousal support from agreements governing property rights
insofar as either has a potential for promoting dissolution. As
the Court of Appeal recognized, today the availability of an enforceable
premarital agreement "may in fact encourage rather than discourage
marriage." We agree with the Court of Appeal, therefore, that,
when entered into voluntarily by parties who are aware of the effect
of the agreement, a premarital waiver of spousal support does not
offend contemporary public policy. Such agreements are, therefore,
permitted under section 1612, subdivision (a)(7), which authorizes
the parties to contract in a premarital agreement regarding "[a]ny
other matter, including their personal rights and obligations,
not in violation of public policy or a statute imposing a criminal
penalty."
We need not decide here whether circumstances existing at the
time enforcement of a waiver of spousal support is sought might
make enforcement unjust. fn. 12 It is enough to conclude here that
no public policy is violated by permitting enforcement of a waiver
of spousal support executed by intelligent, well-educated persons,
each of whom appears to be self-sufficient in property and earning
ability, and both of whom have the advice of [24 Cal.4th 54] counsel
regarding their rights and obligations as marital partners at the
time they execute the waiver. Such a waiver does not violate public
policy and is not per se unenforceable as the trial court believed.
III. Disposition
The judgment of the Court of Appeal is affirmed.
Werdegar, J., Chin, J., Brown, J., Hastings, J., fn. * concurred.
CONCURRING OPINION:
MOSK, J., Acting C. J.-
I concur in the result.
The relevant statute provides that premarital agreements may concern
any subject that does not violate public policy or a statute imposing
a criminal penalty. (Fam. Code, § 1612, subd. (a)(7).) When
a statute's words are "clear and unambiguous our inquiry ends.
There is no need for judicial construction and a court may not
indulge in it." (Diamond Multimedia Systems, Inc. v. Superior
Court (1999) 19 Cal.4th 1036, 1047 [80 Cal.Rptr.2d 828, 968 P.2d
539].) That is true here. Any lingering question whether the Legislature
intended to omit premarital spousal support agreements from the
scope of Family Code section 1612 is dispelled by subdivision (b),
which prohibits premarital agreements to waive or reduce child
support. Had the Legislature desired to prohibit spousal support
agreements, it could have added a few words similar to those of
subdivision (b).
Clearly, the parties did not conspire to violate the criminal
law. The only question is whether their premarital agreement violated
public policy. I agree with the majority that it did not.
DISSENTING OPINION:
KENNARD, J.-
I dissent.
In In re Marriage of Higgason (1973) 10 Cal.3d 476 [110 Cal.Rptr.
897, 516 P.2d 289], this court unanimously held that premarital
agreements waiving spousal support in the event of separation or
dissolution of the marriage violate California's public policy
and are therefore invalid, leaving it to the trial court to determine
at the time of separation or dissolution whether to award spousal
support. Three years later, in In re Marriage of Dawley (1976)
17 Cal.3d 342 [131 Cal.Rptr. 3, 551 P.2d 323], this court, again
unanimously, came to the same conclusion. Our Legislature was fully
[24 Cal.4th 55] aware of these decisions when in 1985, in adopting
provisions of the Uniform Premarital Agreement Act, it chose to
omit the act's provision allowing premarital waiver of spousal
support, thus affirming the decisional law of this state that such
waivers violate public policy.
In overruling by judicial fiat the Legislature's decision to continue
this state's prohibition against premarital waivers of spousal
support, the majority has (1) invaded the legislative domain, (2)
invalidated a legislative decision reflecting sound public policy,
and (3) failed to articulate an intelligible standard to guide
members of the bench and bar in determining whether a premarital
waiver of spousal support is or will be enforceable.
I cannot and do not join the majority in its usurpation of legislative
powers. Any change in the law at issue should come from the Legislature,
not the judiciary.
I
California statutory law generally imposes an obligation to support
one's spouse. (Fam. Code, § 4300 et seq.)
In 1985, California became one of the first states to adopt provisions
of the Uniform Premarital Agreement Act. (9B West's U. Laws Ann.
(1987) U. Premarital Agreement Act (1983) p. 369.) Uniform acts
are drafted by the National Conference of Commissioners on Uniform
State Laws "to promote uniformity in state law, on all subjects
where uniformity is desirable and practicable, by voluntary action
of each state government." (Id. at p. III.)
On March 7, 1985, Senate Bill No. 1143 (1985-1986 Reg. Sess.)
was introduced in our Legislature. The bill proposed adopting the
Uniform Premarital Agreement Act in its entirety. On August 28,
1985, however, the bill was amended to delete these two provisions
of the act:
Section 3, subdivision (a)(4), allowing spousal support to be
modified or eliminated through premarital agreements (Assem. Amend.
to Sen. Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985), fn.
1 and
Section 6, subdivision (b), providing that if, as a result of
having entered into an a premarital agreement waiving spousal support,
a spouse at the time [24 Cal.4th 56] of separation or marital dissolution
becomes impoverished and eligible for public assistance, then a
court retains the authority to award support "to the extent
necessary to avoid that eligibility" (Assem. Amend. to Sen.
Bill No. 1143 (1985-1986 Reg. Sess.) Aug. 28, 1985). fn. 2
When the Legislature deleted these two provisions from Senate
Bill No. 1143, two decisions of this court, In re Marriage of Higgason,
supra, 10 Cal.3d 476, and In re Marriage of Dawley, supra, 17 Cal.3d
342, had held roughly a decade earlier that premarital agreements
waiving spousal support violated California's public policy and
were therefore invalid. At the time of the deletion and until today's
decision by the majority, it was the trial court that determined
whether to award spousal support, depending on the circumstances
existing at the time of separation or dissolution of the marriage.
(See Fam. Code, § 4320 [circumstances trial court should consider
in awarding spousal support].)
Does the Legislature's deletion of the provision allowing premarital
waivers of spousal support establish its intent to preclude such
waivers? The answer is "yes," as I explain below.
On point is this court's decision in Kusior v. Silver (1960) 54
Cal.2d 603 [7 Cal.Rptr. 129, 354 P.2d 657] (Kusior). There, as
here, the Legislature was considering the adoption of a uniform
act. There, the Legislature had refused to enact into law a provision
of the Uniform Act on Blood Tests to Determine Paternity allowing
blood tests to show that the husband was not the father of the
child. (Kusior, supra, at p. 618.) There, as here, California decisional
law was contrary to the proposed provision.
This court in Kusior observed that "[s]tatutes are to be
interpreted by assuming that the Legislature was aware of the existing
judicial decisions." (Kusior, supra, "54 Cal.2d at p.
618.) We then held that in omitting from its adoption of the uniform
act at issue a provision directly at odds with this [24 Cal.4th
57] state's decisional law, the Legislature's omission "must
be deemed" an intent to approve and retain the decisional
law. (Ibid.) Similarly, here the Legislature's express rejection
of the Uniform Premarital Agreement Act's provision allowing premarital
spousal support waivers, in the face of decisional law to the contrary, "must
be deemed" an intent to approve and retain the existing law.
(See also Estate of Sanders (1992) 2 Cal.App.4th 462, 473-474 [3
Cal.Rptr.2d 536] [" '[t]he rejection by the Legislature of
a specific provision contained in an act as originally introduced
is most persuasive to the conclusion that the act should not be
construed to include the omitted provision' "].)
This court's decision in Kusior, supra, 54 Cal.2d 603, is dispositive
here. Under the reasoning of that decision, our Legislature's express
rejection of the proposed uniform law provision allowing waivers
of spousal support was a decision to approve and retain California's
rule prohibiting such waivers. By now deciding that premarital
spousal support waivers do not violate California's public policy,
the majority has invaded the legislative domain, judicially enacting
in substance a provision that the Legislature intended to reject,
and judicially abrogating the rule that the Legislature intended
to retain.
II
Our Legislature's decision not to enact into law the Uniform Premarital
Agreement Act's provision allowing premarital waivers of spousal
support, while adopting other provisions of the act, reflects sound
public policy.
Such waivers do not allow for changed circumstances between execution
of the premarital agreement and separation or dissolution of the
marriage. An agreement equitable at the time of the marriage may
later become inequitable and unjust. For example, the health, earning
capacity, or financial resources of a spouse may change markedly
during the marriage, especially one that is lengthy. An elderly
spouse or one in poor health may be left destitute. The earning
capacity of a spouse may be impaired by the obligations of caring
for children produced by a marriage of short duration. After the
marriage one spouse may elect to give up his or her career to raise
the children of the marriage or to move to another location in
the interest of furthering the career of the other spouse. And
a spouse may substantially deplete his or her financial resources
to advance the other spouse's education, training, or career during
the marriage. fn. 3
These considerations are reflected in the Legislature's enactment
of Family Code section 4320, which sets forth spousal support guidelines
for the [24 Cal.4th 58] trial courts. fn. 4 They are also reflected
in the Legislature's express declarations that spousal support
is a "serious legal obligation[]" (Fam. Code, § 4250,
subd. (a)) and that it "is the policy of the State of California" to "ensure
fair and sufficient" spousal support awards (id., § 2100,
subd. (a)). In rejecting the proposed provision to allow premarital
waivers of spousal support, the Legislature must have recognized
the serious potential for injustice at the time of dissolution
of marriage. [24 Cal.4th 59]
That concern was succinctly expressed in a letter the Women Lawyers'
Association of Los Angeles wrote on June 6, 1985 to Elihu Harris,
the Chair of the Assembly Judiciary Committee, stating its opposition
to that part of Senate Bill No. 1143 proposing adoption of the
Uniform Premarital Agreement Act's provision allowing premarital
waivers of spousal support: "The bill would change existing
California law, which does not enforce premarital waivers of spousal
support, to allow such waivers under certain conditions. Current
California law allows spouses to waive spousal support only at
the time of separation, when they are much more aware of what they
have contributed to and sacrificed for the marriage as well as
their prospects for self-support following the separation. California
law regards the duty to support one's spouse as an essential incident
of marriage and refuses to confer the benefits of marriage on those
who would avoid this obligation. Although numerous states have
adopted the Uniform Premarital Agreement Act, California's position
represents sounder public policy and should not be sacrificed to
achieve uniformity."
In a letter to the Legislature on August 14, 1985, the Family
Law Section of the State Bar of California echoed that concern.
In opposing the proposed provision allowing premarital waivers
of spousal support, the Family Law Section warned that such an
enactment "would be a major change in California law" and "a
great step backward in terms of assuring that the financial consequences
of a dissolution of marriage are borne by both spouses in an equitable
manner."
In sharp contrast to the thoughtful action by the Legislature,
which after the letters quoted above deleted the proposed provision
allowing premarital waivers of spousal support, the majority ignores
the significant public policy considerations that prompted the
Legislature to retain our existing law prohibiting such waivers.
III
After repudiating the existing law of this state prohibiting all
premarital waivers of spousal support, the majority abdicates its
responsibility to articulate guidelines for the bench and bar explaining
when, if ever, such waivers are enforceable. The majority declares
that it will not decide "whether all such agreements [premarital
agreements waiving spousal support] are enforceable regardless
of the circumstances of the parties at the time enforcement is
sought" (maj. opn., ante, at p. 41) and that it will not decide "whether
circumstances existing at the time enforcement of a waiver of spousal
support is sought might make enforcement unjust" (id. at p.
53, fn. omitted). [24 Cal.4th 60]
Given the majority's "holding" that such provisions
may or may not be enforceable depending upon circumstances the
majority refuses to discuss, what guidance is there for attorneys
preparing a premarital agreement to decide whether to include a
waiver of spousal support? And what guidance is there for trial
courts in determining the enforceability of such agreements? If
enforcement of a premarital waiver of spousal support results in
a spouse's becoming eligible for public assistance, should the
trial court order spousal support limited to the amount necessary
to avoid such eligibility, as provided for in the Uniform Premarital
Agreement Act? (See ante, at p. 56, fn. 2.) Or should the trial
court in that instance continue to apply the considerations the
Legislature has specified in Family Code section 4320? (See ante,
at p. 58, fn. 3.) The majority's silence on these important questions
does a disservice to the public, the bar, and the bench.
I would reverse the judgment of the Court of Appeal.
Respondent's petition for a rehearing was denied November 1, 2000.
George, C. J., did not participate therein. Kennard, J., was of
the opinion that the petition should be granted.
-FN *. Associate Justice of the Court of Appeal, Second Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
-FN 1. The right to spousal support is statutory. Family Code
section 4330, subdivision (a), provides: "In a judgment of
dissolution of marriage or legal separation of the parties, the
court may order a party to pay for the support of the other party
an amount, for a period of time, that the court determines is just
and reasonable, based on the standard of living established during
the marriage, taking into consideration the circumstances as provided
in Chapter 2 (commencing with Section 4320)."
Unless otherwise indicated, all statutory references herein are
to the Family Code.
-FN 2. The order explained: "Assuming arguendo that the validity
and enforceability of the waiver of spousal support provision of
the parties' prenuptial agreement can be tested in a motion to
strike, the court denied this motion on the ground that a waiver
of spousal support in a premarital agreement is void and unenforceable
as against California public policy. The court is persuaded that
the legislative history of the statute dealing with the permissible
subjects of premarital agreements indicated that the Legislature
intended to omit a provision in the California version of the Uniform
Premarital Agreement Act (UPAA) that allowed for a premarital waiver
of spousal support.
"The court is further persuaded that the pre-UPAA cases that
hold that premarital agreements that diminish or waive a party's
obligation to pay spousal support to the other party to the marriage
are unenforceable as against public policy and would continue to
be so held after the passage of the UPAA.
"At least one purpose of a policy that a spousal support
waiver will be unenforceable in this state is to protect the state,
not just a party to the marriage. A person's financial circumstances
can change markedly from those found just prior to that person's
marriage. A valid premarital spousal support waiver could produce
spouses who at the time of their marriage have assets and earning
capacity to support themselves without spousal support, but by
the time of the dissolution of their marriages may be unable to
support themselves and in need of financial support. The state
has an interest in having such needy spouses supported by their
spouses if possible. Just as the state has a serious fiscal interest
in not paying for support of children if there is a parent with
the capacity to support that parent's children, the state has a
fiscal interest in seeing that it not be forced to support needy
former spouses if the non-needy former spouse is able to contribute
to the support of the needy former spouse and if ordering the payment
of such support is warranted, pursuant to the principles of Family
Code § 4320. Thus the same principles and policies that underlie
the public policy against permitting a binding waiver of child
support would apply to premarital waivers of spousal support."
-FN 3. The California version of the Uniform Act was enacted in
1985 as Civil Code section 5300 et seq., which was repealed in
1992, effective January 1, 1994, and reenacted as part of the new
Family Code section 1600 et seq. (Fam. Code, § 1601.) The
California version of section 3 of the Uniform Act is now Family
Code section 1612. (Stats. 1992, ch. 162, § 3, p. 464; id., § 10,
p. 500.)
-FN 4. Section 1615: "(a) A premarital agreement is not enforceable
if the party against whom enforcement is sought proves either of
the following:
"(1) That party did not execute the agreement voluntarily.
"(2) The agreement was unconscionable when it was executed
and, before execution of the agreement, all of the following applied
to that party:
"(A) That party was not provided a fair and reasonable disclosure
of the property or financial obligations of the other party.
"(B) That party did not voluntarily and expressly waive,
in writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
"(C) That party did not have, or reasonably could not have
had, an adequate knowledge of the property or financial obligations
of the other party.
"(b) An issue of unconscionability of a premarital agreement
shall be decided by the court as a matter of law."
-FN 5. Dawley also observed that use of the term "facilitate" in
past cases describing unenforceable premarital agreements was misleading,
since any such agreement could be said to facilitate dissolution
by making a dissolution proceeding shorter and less expensive.
Speaking in the context of a property agreement, we said that "public
policy does not render property agreements unenforceable merely
because such agreements simplify the division of marital property:
it is only when the agreement encourages or promotes dissolution
that it offends the public policy to foster and protect marriage." (Dawley,
supra, 17 Cal.3d at p. 350, fn. 5.)
-FN 6. Candace asks the court to take judicial notice of copies
of: (1) a letter dated August 14, 1985, to Assemblyman Lloyd G.
Connelly, from the Family Law Section of the State Bar of California
opposing the inclusion in Senate Bill 1143 of authorization for
premarital waivers of spousal support; (2) a June 6, 1985, letter
to the same effect to Senator Robert Beverly; (3) various sections
of the New Jersey version of the Uniform Premarital Agreement Act
(N.J. Stat. Ann. § 37:2-31 et seq.); and (4) former section
159 of the Civil Code, as originally enacted in 1872 and repealed
in 1969 (replaced by Civ. Code, former § 4802; see now Fam.
Code, §§ 1620, 3580).
The first two items, although bearing a Legislative Intent Service
stamp, are not certified copies and it is not apparent that either
was considered by the Legislature when Senate Bill 1143 was considered.
There is no basis for an assumption that such letters reflect legislative
intent. Judicial notice may be taken of the law of another state.
(Evid. Code, § 452, subd. (a).) However, that law was not
enacted until 1988 and thus is not relevant to legislative intent
in this state. We therefore deny the request for judicial notice.
The position of the Women Lawyers' Association of Los Angeles
was made clear to the Legislature in the subcommittee report discussed
herein which quoted parts of it. That report listed the Family
Law Section of the State Bar as a supporter of Senate Bill 1143,
a position that later changed, as reflected in the referenced letter.
The request for judicial notice of former section 159 of the Civil
Code is granted.
-FN 7. The Oregon court was itself quoting Adams v. Adams (1878)
25 Minn. 72, 79.
-FN 8. At that time, the court was empowered to award support
to a wife to whom a divorce was granted and could also award maintenance
even if the divorce was denied. (Civ. Code, former §§ 136,
139, both enacted 1872 and repealed by Stats. 1969, ch. 1608, § 3,
p. 3313.)
-FN 9. Arizona (Ariz. Rev. Stat. § 25-203); Arkansas (Ark.
Code Ann. § 9-11-403); Connecticut (Conn. Gen. Stat. Ann. § 46b-36d);
Delaware (Del. Code Ann. tit. 13, § 323), District of Columbia
(D.C. Code Ann. § 30-143 (1981)); Hawaii (Haw. Rev. Stat. § 572D-3);
Idaho (Idaho Code § 32-923); Illinois (750 Ill. Comp. Stat.
10/4); Kansas (Kan. Stat. Ann. § 23-804); Maine (Me. Rev.
Stat. Ann. tit. 19-A, § 604); Montana (Mont. Code Ann. § 40-2-605);
Nebraska (Neb. Rev. Stat. § 42-1004); Nevada (Nev. Rev. Stat. § 123A.050);
New Jersey (N.J. Stat. Ann. § 37:2-34); North Carolina (N.C.
Gen. Stat. § 52B-4); North Dakota (N.D. Cent. Code § 14-03.1-03);
Oregon (Or. Rev. Stat. § 108.710); Rhode Island (R.I. Gen.
Laws § 15-17-3); Texas (Tex. Fam. Code Ann. § 4.003);
Utah (Utah Code Ann. § 30-8-4); and Virginia (Va. Code Ann. § 20-150).
An Indiana statute is similar to the Uniform Act. (Ind. Code § 31-11-3-5.)
-FN 10. New York (N.Y. Dom. Rel. Law § 236, pt. B, 3).
-FN 11. Alabama (Ex parte Walters (Ala. 1991) 580 So.2d 1352,
1354 [enforceable if " '[1] ... the consideration was adequate
and ... the entire transaction was fair, just and equitable from
the other person's point of view, or [2] ... the agreement was
freely and voluntarily entered into by the other party with competent
independent advice and full knowledge of her interest in the estate
and its approximate value' "]); Alaska (Brooks v. Brooks (Alaska
1987) 733 P.2d 1044, 1050-1051 ["prenuptial agreements legally
procured and ostensibly fair in result are valid and can be enforced"]);
Colorado (Newman v. Newman (Colo. 1982) 653 P.2d. 728, 731-734
[parties have fiduciary relationship and must act in good faith
with high degree of fairness and disclosure of all material circumstances]);
Florida (Snedaker v. Snedaker (Fla. Dist.Ct.App. 1995) 660 So.2d
1070, 1072 [agreement must be fair and reasonable; not necessary
to demonstrate disclosure or knowledge of extent of property]);
Georgia (Scherer v. Scherer (1982) 249 Ga. 635, 640-641 [292 S.E.2d
662] [not enforceable if unconscionable, procured through fraud,
duress or mistake, or nondisclosure of material facts, or changed
circumstances make enforcement unfair and unreasonable]); Kentucky
(Edwardson v. Edwardson (Ky. 1990) 798 S.W.2d 941, 946 [full disclosure
required; will not be enforced if unconscionable at time enforcement
sought]); Louisiana (McAlpine v. McAlpine (La. 1996) 679 So.2d
85, 93 [Civil Code provisions applicable to contracts generally
apply]); Maryland (Frey v. Frey (1984) 298 Md. 552 [471 A.2d 705]
[enforceable if fair and equitable in procurement and result, with
full disclosure of assets and entered into voluntarily with full
knowledge of meaning and effect]); Minnesota (Hill v. Hill (Minn.Ct.App.
1984) 356 N.W.2d 49, 55 [court will review for unconscionability
at time enforcement sought]); Missouri (Gould v. Rafaeli (Mo.Ct.App.
1991) 822 S.W.2d 494, 497 [enforceable if " 'entered into
freely, fairly, knowingly, understandingly and in good faith and
with full disclosure' "]); New Hampshire (MacFarlane v. Rich
(1989) 132 N.H. 608, 613-614 [567 A.2d 585, 588] [enforceable if
not obtained through fraud, duress, mistake, misrepresentation,
or nondisclosure of material fact, if not unconscionable, and if
circumstances have not changed]); Ohio (Gross v. Gross (1984) 11
Ohio St.3d 99, 105 [464 N.E.2d 500, 506, 53 A.L.R.4th 139] [enforceable
if entered into freely without fraud, duress, coercion, or overreaching,
with full disclosure or knowledge and understanding of the party's
property, and if terms do not promote or encourage divorce]); Oklahoma
(Hudson v. Hudson (1960) 1960 Okla. 70 [350 P.2d 596]); Pennsylvania
(Simeone v. Simeone (1990) 525 Pa. 392 [581 A.2d 162] [enforceable
if just and reasonable]); South Carolina (Gilley v. Gilley (1997)
327 S.C. 8 [488 S.E.2d 310, 312]); Tennessee (Cary v. Cary (Tenn.
1996) 937 S.W. 2d 777 [enforceable if entered into freely and knowledgeably,
with disclosure, absent undue influence or overreaching, but not
if spouse will become public charge]); West Virginia (Gant v. Gant
(1985) 174 W.Va. 740 [329 S.E.2d 106, 112, 53 A.L.R.4th 1] [agreement
must be entered into voluntarily and knowledgeably]); and Wisconsin
(Hengel v. Hengel (1985) 122 Wis. 737 [365 N.W.2d 16]). South Dakota,
like California, has adopted the Uniform Act without section 3,
subdivision (a)(4) and section 6, subdivision (b), and case law
does not permit enforcement. (S.D. Codified Laws §§ 25-2-18,
25-2-24; Connolly v. Connolly (S.D. 1978) 270 N.W.2d 44, 46).
-FN 12. The Legislature may, of course, limit the right to enter
into premarital waivers of spousal support and/or specify the circumstances
in which enforcement should be denied.
-FN *. Associate Justice of the Court of Appeal, Second Appellate
District, Division Four, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
-FN 1. Section 3 of the Uniform Premarital Agreement Act provides: "(a)
Parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of
each of the parties in any of the property of either or both of
them whenever and wherever acquired or located;
(2) the right
to buy, sell, use, transfer, exchange, abandon, lease, consume,
expend, assign, create a security interest in, mortgage, encumber,
dispose of, or otherwise manage and control property;
(3) the
disposition of property upon separation, marital dissolution, death,
or the occurrence or nonoccurrence of any other event;
(4) the
modification or elimination of spousal support;
(5) the making
of a will, trust, or other arrangement to carry out the provisions
of the agreement;
(6) the ownership rights in and
disposition of the death benefit from a life insurance policy;
(7)
the choice of law governing the construction of the agreement;
and
(8) any other matter, including their
personal rights and obligations, not in violation of public policy
or a statute imposing a criminal penalty.
(b) The right of a child
to support may not be adversely affected by a premarital agreement." (9B
West's U. Laws Ann., supra, at p. 373, italics added.)
-FN 2. Section 6, subdivision (b) of the Uniform Premarital Agreement
Act states: "If a provision of a premarital agreement modifies
or eliminates spousal support and that modification or elimination
causes one party to the agreement to be eligible for support under
a program of public assistance at the time of separation or marital
dissolution, a court, notwithstanding the terms of the agreement,
may require the other party to provide support to the extent necessary
to avoid that eligibility." (9B West's U. Laws Ann., supra,
at p. 376.)
-FN 3. The issues I address here are not presented in In re Marriage
of Bonds (2000) 24 Cal.4th 1 [99 Cal.Rptr.2d 252, 5 P.3d 815] (Bonds),
a unanimous decision of this court filed simultaneously with this
decision, although both concern premarital agreements and both
require interpretation of the Uniform Premarital Agreement Act.
The main issue in Bonds is whether one spouse voluntarily entered
into the premarital agreement, an issue not presented here. Also,
the focus of the dispute in Bonds appears to be the premarital
waiver of community property rights, not spousal support. This
distinction is crucial because the Legislature, when it enacted
the Uniform Premarital Agreement Act, deliberately omitted the
provision authorizing spousal support waivers while approving and
enacting the provision authorizing waivers of community property
rights.
The Legislature's decision to permit waiver of community property
rights, but not spousal support, may be explained on policy grounds.
A spouse who has waived community property rights, but not spousal
support, retains effective protection against a sudden, drastic,
and inequitable loss of income resulting from dissolution of marriage,
and may have recourse either to former community property or to
separate property to enforce a spousal support order (Fam. Code, § 4338).
By contrast, a spouse who has lost the right to spousal support
may well have no recourse except public assistance. Thus, the inequities
that may result from premarital spousal support waivers are much
graver than those that may result from a premarital waiver of community
property rights.
-FN 4. Family Code section 4320 provides: "In
ordering spousal support under this part, the court shall consider
all of the following circumstances:
(a) The extent to which the
earning capacity of each party is sufficient to maintain the standard
of living established during the marriage, taking into account
all of the following:
(1) The marketable skills of the
supported party; the job market for those skills; the time and
expenses required for the supported party to acquire the appropriate
education or training to develop those skills; and the possible
need for retraining or education to acquire other, more marketable
skills or employment.
(2) The extent to which the supported
party's present or future earning capacity is impaired by periods
of unemployment that were incurred during the marriage to permit
the supported party to devote time to domestic duties.
(b) The extent to which the supported
party contributed to the attainment of an education, training,
a career position, or a license by the supporting party.
(c) The
ability to pay of the supporting party, taking into account the
supporting party's earning capacity, earned and unearned income,
assets, and standard of living.
(d) The needs of each party based
on the standard of living established during the marriage.
(e)
The obligations and assets, including the separate property, of
each party.
(f) The duration of the marriage.
(g) The ability of the
supported party to engage in gainful employment without unduly
interfering with the interests of dependent children in the custody
of the party.
(h) The age and health of the parties
....
(i) The immediate and specific tax
consequences to each party.
(j) The balance of the hardships
to each party.
(k) The goal that the supported
party shall be self-supporting within a reasonable period of time....
[A] 'reasonable period of time' for purposes of this section generally
shall be one-half the length of the marriage. However, nothing
in this section is intended to limit the court's discretion to
order support for a greater or lesser length of time, based on
any of the other factors listed in this section ... and the circumstances
of the parties.
(l) Any other factors the court
determines are just and equitable."
Section 4320 applies to spousal support upon legal separation
or dissolution of the marriage. (Fam. Code, § 4330, subd.
(a).) Marvin v. Marvin , 18 Cal.3d 660 [L.A. No. 30520. Supreme
Court of California. December 27, 1976.]
MICHELLE MARVIN, Plaintiff and Appellant, v. LEE MARVIN, Defendant
and Respondent.
(Opinion by Tobriner, J., with Wright, C. J., McComb, Mosk, Sullivan
and Richardson, JJ., concurring. Separate concurring and dissenting
opinion by Clark, J.)
COUNSEL
Marvin M. Mitchelson, Donald N. Woldman, Robert M. Ross, Fleishman,
McDaniel, Brown & Weston and David M. Brown for Plaintiff and
Appellant.
Jettie Pierce Selvig, Ruth Miller and Suzie S. Thorn as Amici
Curiae on behalf of Plaintiff and Appellant.
Goldman & Kagon, Mark A. Goldman and William R. Bishin for
Defendant and Respondent.
Herma Hill Kay, John Sutter, Doris Brin Walker and Treuhaft, Walker,
Nawi & Hendon as Amici Curiae on behalf of Defendant and Respondent.
Isabella H. Grant and Livingston, Grant, Stone & Shenk as
Amici Curiae. [18 Cal.3d 665]
OPINION
TOBRINER, J.
During the past 15 years, there has been a substantial increase
in the number of couples living together without marrying. fn.
1 Such nonmarital relationships lead to legal controversy when
one partner dies or the couple separates. Courts of Appeal, faced
with the task of determining property rights in such cases, have
arrived at conflicting positions: two cases (In re Marriage of
Cary (1973) 34 Cal.App.3d 345 [109 Cal.Rptr. 862]; Estate of Atherley
(1975) 44 Cal.App.3d 758 [119 Cal.Rptr. 41]) have held that the
Family Law Act (Civ. Code, § 4000 et seq.) requires division
of the property according to community property principles, and
one decision (Beckman v. Mayhew (1975) 49 Cal.App.3d 529 [122 Cal.Rptr.
604]) has rejected that holding. We take this opportunity to resolve
that controversy and to declare the principles which should govern
distribution of property acquired in a nonmarital relationship.
We conclude: (1) The provisions of the Family Law Act do not govern
the distribution of property acquired during a nonmarital relationship;
such a relationship remains subject solely to judicial decision.
(2) The courts should enforce express contracts between nonmarital
partners except to the extent that the contract is explicitly founded
on the consideration of meretricious sexual services. (3) In the
absence of an express contract, the courts should inquire into
the conduct of the parties to determine whether that conduct demonstrates
an implied contract, agreement of partnership or joint venture,
or some other tacit understanding between the parties. The courts
may also employ the doctrine of quantum meruit, or equitable remedies
such as constructive or resulting trusts, when warranted by the
facts of the case.
In the instant case plaintiff and defendant lived together for
seven years without marrying; all property acquired during this
period was taken in defendant's name. When plaintiff sued to enforce
a contract under which she was entitled to half the property and
to support payments, the trial court granted judgment on the pleadings
for defendant, thus leaving him with all property accumulated by
the couple during their relationship. Since the trial court denied
plaintiff a trial on the merits of her claim, its decision conflicts
with the principles stated above, and must be reversed. [18 Cal.3d
666]
1. The factual setting of this appeal.
[1] Since the trial court rendered judgment for defendant on the
pleadings, we must accept the allegations of plaintiff's complaint
as true, determining whether such allegations state, or can be
amended to state, a cause of action. (See Sullivan v. County of
Los Angeles (1974) 12 Cal.3d 710, 714-715, fn. 3 [117 Cal.Rptr.
241, 527 P.2d 865]; 4 Witkin, Cal. Procedure (2d ed. 1971) pp.
2817-2818.) We turn therefore to the specific allegations of the
complaint.
Plaintiff avers that in October of 1964 she and defendant "entered
into an oral agreement" that while "the parties lived
together they would combine their efforts and earnings and would
share equally any and all property accumulated as a result of their
efforts whether individual or combined." Furthermore, they
agreed to "hold themselves out to the general public as husband
and wife" and that "plaintiff would further render her
services as a companion, homemaker, housekeeper and cook to ...
defendant."
Shortly thereafter plaintiff agreed to "give up her lucrative
career as an entertainer [and] singer" in order to "devote
her full time to defendant ... as a companion, homemaker, housekeeper
and cook;" in return defendant agreed to "provide for
all of plaintiff's financial support and needs for the rest of
her life."
Plaintiff alleges that she lived with defendant from October of
1964 through May of 1970 and fulfilled her obligations under the
agreement. During this period the parties as a result of their
efforts and earnings acquired in defendant's name substantial real
and personal property, including motion picture rights worth over
$1 million. In May of 1970, however, defendant compelled plaintiff
to leave his household. He continued to support plaintiff until
November of 1971, but thereafter refused to provide further support.
On the basis of these allegations plaintiff asserts two causes
of action. The first, for declaratory relief, asks the court to
determine her contract and property rights; the second seeks to
impose a constructive trust upon one half of the property acquired
during the course of the relationship.
Defendant demurred unsuccessfully, and then answered the complaint.
[2] Following extensive discovery and pretrial [18 Cal.3d 667]
proceedings, the case came to trial. fn. 2 Defendant renewed his
attack on the complaint by a motion to dismiss. Since the parties
had stipulated that defendant's marriage to Betty Marvin did not
terminate until the filing of a final decree of divorce in January
1967, the trial court treated defendant's motion as one for judgment
on the pleadings augmented by the stipulation.
After hearing argument the court granted defendant's motion and
entered judgment for defendant. Plaintiff moved to set aside the
judgment and asked leave to amend her complaint to allege that
she and defendant reaffirmed their agreement after defendant's
divorce was final. The trial court denied plaintiff's motion, and
she appealed from the judgment.
2. [3a] Plaintiff's complaint states a cause of action for breach
of an express contract.
In Trutalli v. Meraviglia (1932) 215 Cal. 698 [12 P.2d 430] we
established the principle that nonmarital partners may lawfully
contract concerning the ownership of property acquired during the
relationship. We reaffirmed this principle in Vallera v. Vallera
(1943) 21 Cal.2d 681, 685 [134 P.2d 761], stating that "If
a man and woman [who are not married] live together as husband
and wife under an agreement to pool [18 Cal.3d 668] their earnings
and share equally in their joint accumulations, equity will protect
the interests of each in such property."
In the case before us plaintiff, basing her cause of action in
contract upon these precedents, maintains that the trial court
erred in denying her a trial on the merits of her contention. Although
that court did not specify the ground for its conclusion that plaintiff's
contractual allegations stated no cause of action, fn. 3 defendant
offers some four theories to sustain the ruling; we proceed to
examine them.
Defendant first and principally relies on the contention that
the alleged contract is so closely related to the supposed "immoral" character
of the relationship between plaintiff and himself that the enforcement
of the contract would violate public policy. fn. 4 He points to
cases asserting that a contract between nonmarital partners is
unenforceable if it is "involved in" an illicit relationship
(see Shaw v. Shaw (1964) 227 Cal.App.2d 159, 164 [38 Cal.Rptr.
520] (dictum); Garcia v. Venegas (1951) 106 Cal.App.2d 364, 368
[235 P.2d 89] (dictum), or made in "contemplation" of
such a relationship (Hill v. Estate of Westbrook (1950) 95 Cal.App.2d
599, 602 [213 P.2d 727]; see Hill v. Estate of Westbrook (1952)
39 Cal.2d 458, 460 [247 P.2d 19]; Barlow v. Collins (1958) 166
Cal.App.2d 274, 277 [333 P.2d 64] (dictum); Bridges v. Bridges
(1954) 125 Cal.App.2d 359, 362 [270 P.2d 69] (dictum)). A review
of the numerous California decisions concerning contracts between
nonmarital [18 Cal.3d 669] partners, however, reveals that the
courts have not employed such broad and uncertain standards to
strike down contracts. The decisions instead disclose a narrower
and more precise standard: a contract between nonmarital partners
is unenforceable only to the extent that it explicitly rests upon
the immoral and illicit consideration of meretricious sexual services.
In the first case to address this issue, Trutalli v. Meraviglia,
supra, 215 Cal. 698, the parties had lived together without marriage
for 11 years and had raised two children. The man sued to quiet
title to land he had purchased in his own name during this relationship;
the woman defended by asserting an agreement to pool earnings and
hold all property jointly. Rejecting the assertion of the illegality
of the agreement, the court stated that "The fact that the
parties to this action at the time they agreed to invest their
earnings in property to be held jointly between them were living
together in an unlawful relation, did not disqualify them from
entering into a lawful agreement with each other, so long as such
immoral relation was not made a consideration of their agreement." (Italics
added.) (215 Cal. at pp. 701-702.)
In Bridges v. Bridges, supra, 125 Cal.App.2d 359 [270 P.2d 69],
both parties were in the process of obtaining divorces from their
erstwhile respective spouses. The two parties agreed to live together,
to share equally in property acquired, and to marry when their
divorces became final. The man worked as a salesman and used his
savings to purchase properties. The woman kept house, cared for
seven children, three from each former marriage and one from the
nonmarital relationship, and helped construct improvements on the
properties. When they separated, without marrying, the court awarded
the woman one-half the value of the property. Rejecting the man's
contention that the contract was illegal, the court stated that: "Nowhere
is it expressly testified to by anyone that there was anything
in the agreement for the pooling of assets and the sharing of accumulations
that contemplated meretricious relations as any part of the consideration
or as any object of the agreement." (125 Cal.App.2d at p.
363.)
Croslin v. Scott (1957) 154 Cal.App.2d 767 [316 P.2d 755] reiterates
the rule established in Trutalli and Bridges. In Croslin the parties
separated following a three-year nonmarital relationship. The woman
then phoned the man, asked him to return to her, and suggested
that he build them a house on a lot she owned. She agreed in return
to place the property in joint ownership. The man built the house,
and the parties lived there for [18 Cal.3d 670] several more years.
When they separated, he sued to establish his interest in the property.
Reversing a nonsuit, the Court of Appeal stated that "The
mere fact that parties agree to live together in meretricious relationship
does not necessarily make an agreement for disposition of property
between them invalid. It is only when the property agreement is
made in connection with the other agreement, or the illicit relationship
is made a consideration of the property agreement, that the latter
becomes illegal." (154 Cal.App.2d at p. 771.)
Numerous other cases have upheld enforcement of agreements between
nonmarital partners in factual settings essentially indistinguishable
from the present case. (In re Marriage of Foster (1974) 42 Cal.App.3d
577 [117 Cal.Rptr. 49]; Weak v. Weak, supra, 202 Cal.App.2d 632,
639; Ferguson v. Schuenemann (1959) 167 Cal.App.2d 413 [334 P.2d
668]; Barlow v. Collins, supra, 166 Cal.App.2d 274, 277-278; Ferraro
v. Ferraro (1956) 146 Cal.App.2d 849 [304 P.2d 168]; Cline v. Festersen
(1954) 128 Cal.App.2d 380 [275 P.2d 149]; Profit v. Profit (1953)
117 Cal.App.2d 126 [255 P.2d 25]; Garcia v. Venegas, supra, 106
Cal.App.2d 364; Padilla v. Padilla (1940) 38 Cal.App.2d 319 [100
P.2d 1093]; Bacon v. Bacon (1937) 21 Cal.App.2d 540 [69 P.2d 884].)
fn. 5
Although the past decisions hover over the issue in the somewhat
wispy form of the figures of a Chagall painting, we can abstract
from those decisions a clear and simple rule. [4] The fact that
a man and woman live together without marriage, and engage in a
sexual relationship, does not in itself invalidate agreements between
them relating to their earnings, property, or expenses. Neither
is such an agreement invalid merely because the parties may have
contemplated the creation or continuation of a nonmarital relationship
when they entered into it. Agreements between nonmarital partners
fail only to the extent that they [18 Cal.3d 671] rest upon a consideration
of meretricious sexual services. Thus the rule asserted by defendant,
that a contract fails if it is "involved in" or made "in
contemplation" of a nonmarital relationship, cannot be reconciled
with the decisions.
The three cases cited by defendant which have declined to enforce
contracts between nonmarital partners involved consideration that
was expressly founded upon an illicit sexual services. In Hill
v. Estate of Westbrook, supra, 95 Cal.App.2d 599, the woman promised
to keep house for the man, to live with him as man and wife, and
to bear his children; the man promised to provide for her in his
will, but died without doing so. Reversing a judgment for the woman
based on the reasonable value of her services, the Court of Appeal
stated that "the action is predicated upon a claim which seeks,
among other things, the reasonable value of living with decedent
in meretricious relationship and bearing him two children. ...
The law does not award compensation for living with a man as a
concubine and bearing him children. ... As the judgment is at least
in part, for the value of the claimed services for which recovery
cannot be had, it must be reversed." (95 Cal.App.2d at p.
603.) Upon retrial, the trial court found that it could not sever
the contract and place an independent value upon the legitimate
services performed by claimant. We therefore affirmed a judgment
for the estate. (Hill v. Estate of Westbrook (1952) 39 Cal.2d 458
[247 P.2d 19].)
In the only other cited decision refusing to enforce a contract,
Updeck v. Samuel (1954) 123 Cal.App.2d 264 [266 P.2d 822], the
contract "was based on the consideration that the parties
live together as husband and wife." (123 Cal.App.2d at p.
267.) Viewing the contract as calling for adultery, the court held
it illegal. fn. 6 [18 Cal.3d 672]
The decisions in the Hill and Updeck cases thus demonstrate that
a contract between nonmarital partners, even if expressly made
in contemplation of a common living arrangement, is invalid only
if sexual acts form an inseparable part of the consideration for
the agreement. In sum, a court will not enforce a contract for
the pooling of property and earnings if it is explicitly and inseparably
based upon services as a paramour. The Court of Appeal opinion
in Hill, however, indicates that even if sexual services are part
of the contractual consideration, any severable portion of the
contract supported by independent consideration will still be enforced.
The principle that a contract between nonmarital partners will
be enforced unless expressly and inseparably based upon an illicit
consideration of sexual services not only represents the distillation
of the decisional law, but also offers a far more precise and workable
standard than that advocated by defendant. Our recent decision
in In re Marriage of Dawley (1976) 17 Cal.3d 342 [131 Cal.Rptr.
3, 551 P.2d 323] offers a close analogy. Rejecting the contention
that an antenuptial agreement is invalid if the parties contemplated
a marriage of short duration, we pointed out in Dawley that a standard
based upon the subjective contemplation of the parties is uncertain
and unworkable; such a test, we stated, "might invalidate
virtually all antenuptial agreements on the ground that the parties
contemplated dissolution ... but it provides no principled basis
for determining which antenuptial agreements offend public policy
and which do not." (17 Cal.3d 342, 352.)
Similarly, in the present case a standard which inquires whether
an agreement is "involved" in or "contemplates" a
nonmarital relationship is vague and unworkable. Virtually all
agreements between nonmarital partners can be said to be "involved" in
some sense in the fact of their mutual sexual relationship, or
to "contemplate" the existence of that relationship.
Thus defendant's proposed standards, if taken literally, might
invalidate all agreements between nonmarital partners, a result
no one favors. Moreover, those standards offer no basis to distinguish
between valid and invalid agreements. By looking not to such uncertain
tests, but only to the consideration underlying the agreement,
we provide the parties and the courts with a practical guide to
determine when an agreement between nonmarital partners should
be enforced.
[5] Defendant secondly relies upon the ground suggested by the
trial court: that the 1964 contract violated public policy because
it impaired [18 Cal.3d 673] the community property rights of Betty
Marvin, defendant's lawful wife. Defendant points out that his
earnings while living apart from his wife before rendition of the
interlocutory decree were community property under 1964 statutory
law (former Civ. Code, §§ 169, 169.2) fn. 7 and that
defendant's agreement with plaintiff purported to transfer to her
a half interest in that community property. But whether or not
defendant's contract with plaintiff exceeded his authority as manager
of the community property (see former Civ. Code, § 172), defendant's
argument fails for the reason that an improper transfer of community
property is not void ab initio, but merely voidable at the instance
of the aggrieved spouse. See Ballinger v. Ballinger (1937) 9 Cal.2d
330, 334 [70 P.2d 629; Trimble v. Trimble (1933) 219 Cal. 340,
344 [26 P.2d 477].)
In the present case Betty Marvin, the aggrieved spouse, had the
opportunity to assert her community property rights in the divorce
action. (See Babbitt v. Babbitt (1955) 44 Cal.2d 289, 293 [282
P.2d 1].) The interlocutory and final decrees in that action fix
and limit her interest. Enforcement of the contract between plaintiff
and defendant against property awarded to defendant by the divorce
decree will not impair any right of Betty's, and thus is not on
that account violative of public policy. fn. 8
[6] Defendant's third contention is noteworthy for the lack of
authority advanced in its support. He contends that enforcement
of the oral agreement between plaintiff and himself is barred by
Civil Code section 5134, which provides that "All contracts
for marriage settlements must be in writing. ..." A marriage
settlement, however, is an agreement in contemplation of marriage
in which each party agrees to release or modify the property rights
which would otherwise arise from the marriage. (See Corker v. Corker
(1891) 87 Cal. 643, 648 [25 P. 922].) The [18 Cal.3d 674] contract
at issue here does not conceivably fall within that definition,
and thus is beyond the compass of section 5134. fn. 9
[7] Defendant finally argues that enforcement of the contract
is barred by Civil Code section 43.5, subdivision (d), which provides
that "No cause of action arises for ... breach of promise
of marriage." This rather strained contention proceeds from
the premise that a promise of marriage impliedly includes a promise
to support and to pool property acquired after marriage (see Boyd
v. Boyd (1964) 228 Cal.App.2d 374 [39 Cal.Rptr. 400]) to the conclusion
that pooling and support agreements not part of or accompanied
by promise of marriage are barred by the section. We conclude that
section 43.5 is not reasonably susceptible to the interpretation
advanced by defendant, a conclusion demonstrated by the fact that
since section 43.5 was enacted in 1939, numerous cases have enforced
pooling agreements between nonmarital partners, and in none did
court or counsel refer to section 43.5.
[3b] In summary, we base our opinion on the principle that adults
who voluntarily live together and engage in sexual relations are
nonetheless as competent as any other persons to contract respecting
their earnings and property rights. Of course, they cannot lawfully
contract to pay for the performance of sexual services, for such
a contract is, in essence, an agreement for prostitution and unlawful
for that reason. But they may agree to pool their earnings and
to hold all property acquired during the relationship in accord
with the law governing community property; conversely they may
agree that each partner's earnings and the property acquired from
those earnings remains the separate property of the earning partner.
fn. 10 So long as the agreement does not rest upon illicit meretricious
consideration, the parties may order their economic affairs as
they choose, and no policy precludes the courts from enforcing
such agreements.
In the present instance, plaintiff alleges that the parties agreed
to pool their earnings, that they contracted to share equally in
all property [18 Cal.3d 675] acquired, and that defendant agreed
to support plaintiff. The terms of the contract as alleged do not
rest upon any unlawful consideration. We therefore conclude that
the complaint furnishes a suitable basis upon which the trial court
can render declaratory relief. (See 3 Witkin, Cal. Procedure (2d
ed.) pp. 2335-2336.) The trial court consequently erred in granting
defendant's motion for judgment on the pleadings.
3. [8a] Plaintiff's complaint can be amended to state a cause
of action founded upon theories of implied contract or equitable
relief.
As we have noted, both causes of action in plaintiff's complaint
allege an express contract; neither assert any basis for relief
independent from the contract. In In re Marriage of Cary, supra,
34 Cal.App.3d 345, however, the Court of Appeal held that, in view
of the policy of the Family Law Act, property accumulated by nonmarital
partners in an actual family relationship should be divided equally.
Upon examining the Cary opinion, the parties to the present case
realized that plaintiff's alleged relationship with defendant might
arguably support a cause of action independent of any express contract
between the parties. The parties have therefore briefed and discussed
the issue of the property rights of a nonmarital partner in the
absence of an express contract. Although our conclusion that plaintiff's
complaint states a cause of action based on an express contract
alone compels us to reverse the judgment for defendant, resolution
of the Cary issue will serve both to guide the parties upon retrial
and to resolve a conflict presently manifest in published Court
of Appeal decisions.
Both plaintiff and defendant stand in broad agreement that the
law should be fashioned to carry out the reasonable expectations
of the parties. Plaintiff, however, presents the following contentions:
that the decisions prior to Cary rest upon implicit and erroneous
notions of punishing a party for his or her guilt in entering into
a nonmarital relationship, that such decisions result in an inequitable
distribution of property accumulated during the relationship, and
that Cary correctly held that the enactment of the Family Law Act
in 1970 overturned those prior decisions. Defendant in response
maintains that the prior decisions merely applied common law principles
of contract and property to persons who have deliberately elected
to remain outside the bounds of the community property system.
fn. 11 Cary, defendant contends, erred in [18 Cal.3d 676] holding
that the Family Law Act vitiated the force of the prior precedents.
As we shall see from examination of the pre-Cary decisions, the
truth lies somewhere between the positions of plaintiff and defendant.
The classic opinion on this subject is Vallera v. Vallera, supra,
21 Cal.2d 681. Speaking for a four-member majority, Justice Traynor
posed the question: "whether a woman living with a man as
his wife but with no genuine belief that she is legally married
to him acquires by reason of cohabitation alone the rights of a
co-tenant in his earnings and accumulations during the period of
their relationship." (21 Cal.2d at p. 684.) Citing Flanagan
v. Capital Nat. Bank (1931) 213 Cal. 664 [3 P.2d 307], which held
that a nonmarital "wife" could not claim that her husband's
estate was community property, the majority answered that question "in
the negative." (Pp. 684-685.) Vallera explains that "Equitable
considerations arising from the reasonable expectation of the continuation
of benefits attending the status of marriage entered into in good
faith are not present in such a case." (P. 685.) In the absence
of express contract, Vallera concluded, the woman is entitled to
share in property jointly accumulated only "in the proportion
that her funds contributed toward its acquisition." (P. 685.)
Justice Curtis, dissenting, argued that the evidence showed an
implied contract under which each party owned an equal interest
in property acquired during the relationship.
The majority opinion in Vallera did not expressly bar recovery
based upon an implied contract, nor preclude resort to equitable
remedies. But Vallera's broad assertion that equitable considerations "are
not present" in the case of a nonmarital relationship (21
Cal.2d at p. 685) led the Courts of Appeal to interpret the language
to preclude recovery based on such theories. (See Lazzarevich v.
Lazzarevich (1948) 88 Cal.App.2d 708, [18 Cal.3d 677] 719 [200
P.2d 49]; Oakley v. Oakley (1947) 82 Cal.App.2d 188, 191-192 [185
P.2d 848].) fn. 12
Consequently, when the issue of the rights of a nonmarital partner
reached this court in Keene v. Keene (1962) 57 Cal.2d 657 [21 Cal.Rptr.
593, 371 P.2d 329], the claimant forwent reliance upon theories
of contract implied in law or fact. Asserting that she had worked
on her partner's ranch and that her labor had enhanced its value,
she confined her cause of action to the claim that the court should
impress a resulting trust on the property derived from the sale
of the ranch. The court limited its opinion accordingly, rejecting
her argument on the ground that the rendition of services gives
rise to a resulting trust only when the services aid in acquisition
of the property, not in its subsequent improvement. (57 Cal.2d
at p. 668.) Justice Peters, dissenting, attacked the majority's
distinction between the rendition of services and the contribution
of funds or property; he maintained that both property and services
furnished valuable consideration, and potentially afforded the
ground for a resulting trust.
This failure of the courts to recognize an action by a nonmarital
partner based upon implied contract, or to grant an equitable remedy,
contrasts with the judicial treatment of the putative spouse. Prior
to the enactment of the Family Law Act, no statute granted rights
to a putative spouse. fn. 13 The courts accordingly fashioned a
variety of remedies by judicial decision. Some cases permitted
the putative spouse to recover half the property on a theory that
the conduct of the parties implied an agreement of partnership
or joint venture. (See Estate of Vargas (1974) 36 Cal.App.3d 714,
717-718 [111 Cal.Rptr. 779]; Sousa v. Freitas (1970) 10 Cal.App.3d
660, 666 [89 Cal.Rptr. 485].) Others permitted the spouse to recover
the reasonable value of rendered services, less the value of support
received. (See Sanguinetti v. Sanguinetti (1937) 9 Cal.2d 95, [18
Cal.3d 678] 100-102 [69 P.2d 845, 111 A.L.R. 342].) fn. 14 Finally,
decisions affirmed the power of a court to employ equitable principles
to achieve a fair division of property acquired during putative
marriage. (Coats v. Coats (1911) 160 Cal. 671, 677-678 [118 P.
441]; Caldwell v. Odisio (1956) 142 Cal.App.2d 732, 735 [299 P.2d
14].) fn. 15
Thus in summary, the cases prior to Cary exhibited a schizophrenic
inconsistency. By enforcing an express contract between nonmarital
partners unless it rested upon an unlawful consideration, the courts
applied a common law principle as to contracts. Yet the courts
disregarded the common law principle that holds that implied contracts
can arise from the conduct of the parties. fn. 16 Refusing to enforce
such contracts, the courts spoke of leaving the parties "in
the position in which they had placed themselves" (Oakley
v. Oakley, supra, 82 Cal.App.2d 188, 192), just as if they were
guilty parties in pari delicto.
Justice Curtis noted this inconsistency in his dissenting opinion
in Vallera, pointing out that "if an express agreement will
be enforced, there is no legal or just reason why an implied agreement
to share the property cannot be enforced." (21 Cal.2d 681,
686; see Bruch, Property Rights of De Facto Spouses Including Thoughts
on the Value of Homemakers' Services (1976) 10 Family L.Q. 101,
117-121.) And in Keene v. Keene, supra, 57 Cal.2d 657, Justice
Peters observed that if the [18 Cal.3d 679] man and woman "were
not illegally living together ... it would be a plain business
relationship and a contract would be implied." (Dis. opn.
at p. 672.)
Still another inconsistency in the prior cases arises from their
treatment of property accumulated through joint effort. To the
extent that a partner had contributed funds or property, the cases
held that the partner obtains a proportionate share in the acquisition,
despite the lack of legal standing of the relationship. (Vallera
v. Vallera, supra, 21 Cal.2d at p. 685; see Weak v. Weak, supra,
202 Cal.App.2d 632, 639.) Yet courts have refused to recognize
just such an interest based upon the contribution of services.
As Justice Curtis points out "Unless it can be argued that
a woman's services as cook, housekeeper, and homemaker are valueless,
it would seem logical that if, when she contributes money to the
purchase of property, her interest will be protected, then when
she contributes her services in the home, her interest in property
accumulated should be protected." (Vallera v. Vallera, supra,
21 Cal.2d 681, 686-687 (dis. opn.); see Bruch, op. cit., supra,
10 Family L.Q. 101, 110-114; Article, Illicit Cohabitation: The
Impact of the Vallera and Keene Cases on the Rights of the Meretricious
Spouse (1973) 6 U.C. Davis L.Rev. 354, 369-370; Comment (1972)
48 Wash.L.Rev. 635, 641.)
Thus as of 1973, the time of the filing of In re Marriage of Cary,
supra, 34 Cal.App.3d 345, the cases apparently held that a nonmarital
partner who rendered services in the absence of express contract
could assert no right to property acquired during the relationship.
The facts of Cary demonstrated the unfairness of that rule.
Janet and Paul Cary had lived together, unmarried, for more than
eight years. They held themselves out to friends and family as
husband and wife, reared four children, purchased a home and other
property, obtained credit, filed joint income tax returns, and
otherwise conducted themselves as though they were married. Paul
worked outside the home, and Janet generally cared for the house
and children.
In 1971 Paul petitioned for "nullity of the marriage." fn.
17 Following a hearing on that petition, the trial court awarded
Janet half the property acquired during the relationship, although
all such property was traceable to Paul's earnings. The Court of
Appeal affirmed the award. [18 Cal.3d 680]
Reviewing the prior decisions which had denied relief to the homemaking
partner, the Court of Appeal reasoned that those decisions rested
upon a policy of punishing persons guilty of cohabitation without
marriage. The Family Law Act, the court observed, aimed to eliminate
fault or guilt as a basis for dividing marital property. But once
fault or guilt is excluded, the court reasoned, nothing distinguishes
the property rights of a nonmarital "spouse" from those
of a putative spouse. Since the latter is entitled to half the "'quasi
marital property'" (Civ. Code, § 4452), the Court of
Appeal concluded that, giving effect to the policy of the Family
Law Act, a nonmarital cohabitator should also be entitled to half
the property accumulated during an "actual family relationship." (34
Cal.App.3d at p. 353.) fn. 18 [18 Cal.3d 681]
Cary met with a mixed reception in other appellate districts.
In Estate of Atherley, supra, 44 Cal.App.3d 758, the Fourth District
agreed with Cary that under the Family Law Act a nonmarital partner
in an actual family relationship enjoys the same right to an equal
division of property as a putative spouse. In Beckman v. Mayhew,
supra, 49 Cal.App.3d 529, however, the Third District rejected
Cary on the ground that the Family Law Act was not intended to
change California law dealing with nonmarital relationships.
[9] If Cary is interpreted as holding that the Family Law Act
requires an equal division of property accumulated in nonmarital "actual
family relationships," then we agree with Beckman v. Mayhew
that Cary distends the act. No language in the Family Law Act addresses
the property rights of nonmarital partners, and nothing in the
legislative history of the act suggests that the Legislature considered
that subject. fn. 19 The delineation of the rights of nonmarital
partners before 1970 had been fixed entirely by judicial decision;
we see no reason to believe that the Legislature, by enacting the
Family Law Act, intended to change that state of affairs.
But although we reject the reasoning of Cary and Atherley, we
share the perception of the Cary and Atherley courts that the application
of former precedent in the factual setting of those cases would
work an unfair distribution of the property accumulated by the
couple. Justice Friedman in Beckman v. Mayhew, supra, 49 Cal.App.3d
529, 535, also questioned the continued viability of our decisions
in Vallera and Keene; commentators have argued the need to reconsider
those precedents. fn. 20 We should not, therefore, reject the authority
of Cary and Atherley without also examining the deficiencies in
the former law which led to those decisions. [18 Cal.3d 682]
The principal reason why the pre-Cary decisions result in an unfair
distribution of property inheres in the court's refusal to permit
a nonmarital partner to assert rights based upon accepted principles
of implied contract or equity. We have examined the reasons advanced
to justify this denial of relief, and find that none have merit.
First, we note that the cases denying relief do not rest their
refusal upon any theory of "punishing" a "guilty" partner.
Indeed, to the extent that denial of relief "punishes" one
partner, it necessarily rewards the other by permitting him to
retain a disproportionate amount of the property. Concepts of "guilt" thus
cannot justify an unequal division of property between two equally "guilty" persons.
fn. 21
Other reasons advanced in the decisions fare no better. The principal
argument seems to be that "[e]quitable considerations arising
from the reasonable expectation of ... benefits attending the status
of marriage ... are not present [in a nonmarital relationship]." (Vallera
v. Vallera, supra, 21 Cal.2d at p. 685.) But, although parties
to a nonmarital relationship obviously cannot have based any expectations
upon the belief that they were married, other expectations and
equitable considerations remain. The parties may well expect that
property will be divided in accord with the parties' own tacit
understanding and that in the absence of such understanding the
courts will fairly apportion property accumulated through mutual
effort. We need not treat nonmarital partners as putatively married
persons in order to apply principles of implied contract, or extend
equitable remedies; we need to treat them only as we do any other
unmarried persons. fn. 22 [18 Cal.3d 683]
The remaining arguments advanced from time to time to deny remedies
to the nonmarital partners are of less moment. There is no more
reason to presume that services are contributed as a gift than
to presume that funds are contributed as a gift; in any event the
better approach is to presume, as Justice Peters suggested, "that
the parties intend to deal fairly with each other." (Keene
v. Keene, supra, 57 Cal.2d 657, 674 (dissenting opn.); see Bruch,
op. cit., supra, 10 Family L.Q. 101, 113.)
The argument that granting remedies to the nonmarital partners
would discourage marriage must fail; as Cary pointed out, "with
equal or greater force the point might be made that the pre-1970
rule was calculated to cause the income-producing partner to avoid
marriage and thus retain the benefit of all of his or her accumulated
earnings." (34 Cal.App.3d at p. 353.) Although we recognize
the well-established public policy to foster and promote the institution
of marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482
[74 P. 28]), perpetuation of judicial rules which result in an
inequitable distribution of property accumulated during a nonmarital
relationship is neither a just nor an effective way of carrying
out that policy.
In summary, we believe that the prevalence of nonmarital relationships
in modern society and the social acceptance of them, marks this
as a time when our courts should by no means apply the doctrine
of the unlawfulness of the so-called meretricious relationship
to the instant case. As we have explained, the nonenforceability
of agreements expressly providing for meretricious conduct rested
upon the fact that such conduct, as the word suggests, pertained
to and encompassed prostitution. To equate the nonmarital relationship
of today to such a subject matter is to do violence to an accepted
and wholly different practice.
We are aware that many young couples live together without the
solemnization of marriage, in order to make sure that they can
successfully later undertake marriage. This trial period, fn. 23
preliminary to marriage, serves as some assurance that the marriage
will not subsequently end in dissolution to the harm of both parties.
We are aware, as we have stated, of the pervasiveness of nonmarital
relationships in other situations. [18 Cal.3d 684]
The mores of the society have indeed changed so radically in regard
to cohabitation that we cannot impose a standard based on alleged
moral considerations that have apparently been so widely abandoned
by so many. Lest we be misunderstood, however, we take this occasion
to point out that the structure of society itself largely depends
upon the institution of marriage, and nothing we have said in this
opinion should be taken to derogate from that institution. The
joining of the man and woman in marriage is at once the most socially
productive and individually fulfilling relationship that one can
enjoy in the course of a lifetime.
[8b] We conclude that the judicial barriers that may stand in
the way of a policy based upon the fulfillment of the reasonable
expectations of the parties to a nonmarital relationship should
be removed. As we have explained, the courts now hold that express
agreements will be enforced unless they rest on an unlawful meretricious
consideration. We add that in the absence of an express agreement,
the courts may look to a variety of other remedies in order to
protect the parties' lawful expectations. fn. 24
The courts may inquire into the conduct of the parties to determine
whether that conduct demonstrates an implied contract or implied
agreement of partnership or joint venture (see Estate of Thornton
(1972) 81 Wn.2d 72 [499 P.2d 864]), or some other tacit understanding
between the parties. The courts may, when appropriate, employ principles
of constructive trust (see Omer v. Omer (1974) 11 Wash.App. 386
[523 P.2d 957]) or resulting trust (see Hyman v. Hyman (Tex.Civ.App.
1954) 275 S.W.2d 149). Finally, a nonmarital partner may recover
in quantum meruit for the reasonable value of household services
rendered less the reasonable value of support received if he can
show that he rendered services with the expectation of monetary
reward. (See Hill v. Estate of Westbrook, supra, 39 Cal.2d 458,
462.) fn. 25
Since we have determined that plaintiff's complaint states a cause
of action for breach of an express contract, and, as we have explained,
can [18 Cal.3d 685] be amended to state a cause of action independent
of allegations of express contract, fn. 26 we must conclude that
the trial court erred in granting defendant a judgment on the pleadings.
The judgment is reversed and the cause remanded for further proceedings
consistent with the views expressed herein. fn. 27
Wright, C. J., McComb, J., Mosk, J., Sullivan, J., and Richardson,
J., concurred.
CLARK, J.,
Concurring and Dissenting.
The majority opinion properly permit recovery on the basis of
either express or implied in fact agreement between the parties.
These being the issues presented, their resolution requires reversal
of the judgment. Here, the opinion should stop.
This court should not attempt to determine all anticipated rights,
duties and remedies within every meretricious relationship -- particularly
in vague terms. Rather, these complex issues should be determined
as each arises in a concrete case.
The majority broadly indicate that a party to a meretricious relationship
may recover on the basis of equitable principles and in quantum
meruit. However, the majority fail to advise us of the circumstances
permitting recovery, limitations on recovery, or whether their
numerous remedies are cumulative or exclusive. Conceivably, under
the majority opinion a party may recover half of the property acquired
during the relationship on the basis of general equitable principles,
recover a bonus based on specific equitable considerations, and
recover a second bonus in quantum meruit.
The general sweep of the majority opinion raises but fails to
answer several questions. First, because the Legislature specifically
excluded some parties to a meretricious relationship from the equal
division rule of Civil Code section 4452, is this court now free
to create an equal division rule? Second, upon termination of the
relationship, is it equitable to impose the economic obligations
of lawful spouses on [18 Cal.3d 686] meretricious parties when
the latter may have rejected matrimony to avoid such obligations?
Third, does not application of equitable principles -- necessitating
examination of the conduct of the parties -- violate the spirit
of the Family Law Act of 1969, designed to eliminate the bitterness
and acrimony resulting from the former fault system in divorce?
Fourth, will not application of equitable principles reimpose upon
trial courts the unmanageable burden of arbitrating domestic disputes?
Fifth, will not a quantum meruit system of compensation for services
-- discounted by benefits received -- place meretricious spouses
in a better position than lawful spouses? Sixth, if a quantum meruit
system is to be allowed, does fairness not require inclusion of
all services and all benefits regardless of how difficult the evaluation?
When the parties to a meretricious relationship show by express
or implied in fact agreement they intend to create mutual obligations,
the courts should enforce the agreement. However, in the absence
of agreement, we should stop and consider the ramifications before
creating economic obligations which may violate legislative intent,
contravene the intention of the parties, and surely generate undue
burdens on our trial courts.
By judicial overreach, the majority perform a nunc pro tunc marriage,
dissolve it, and distribute its property on terms never contemplated
by the parties, case law or the Legislature.
-FN 1. "The 1970 census figures indicate that today perhaps
eight times as many couples are living together without being married
as cohabited ten years ago." (Comment, In re Cary: A Judicial
Recognition of Illicit Cohabitation (1974) 25 Hastings L.J. 1226.)
-FN 2. When the case was called for trial, plaintiff asked leave
to file an amended complaint. The proposed complaint added two
causes of action for breach of contract against Santa Ana Records,
a corporation not a party to the action, asserting that Santa Ana
was an alter ego of defendant. The court denied leave to amend,
and plaintiff claims that the ruling was an abuse of discretion.
We disagree; plaintiff's argument was properly rejected by the
Court of Appeal in the portion of its opinion quoted below.
No error was committed in denial of plaintiff's motion, made on
the opening day set for trial, seeking leave to file a proposed
amended complaint which would have added two counts and a new defendant
to the action. As stated by plaintiff's counsel at the hearing, "[T]here
is no question about it that we seek to amend the Complaint not
on the eve of trial but on the day of trial."
In Hayutin v. Weintraub, 207 Cal.App.2d 497 [24 Cal.Rptr. 761],
the court said at pages 508-509 in respect to such a motion that
had it been granted, it "would have required a long continuance
for the purpose of canvassing wholly new factual issues, a redoing
of the elaborate discovery procedures previously had, all of which
would have imposed upon defendant and his witnesses substantial
inconvenience ... and upon defendant needless and substantial additional
expense. ... The court did not err in denying leave to file the
proposed amended complaint." (See also: Nelson v. Specialty
Records, Inc., 11 Cal.App.3d 126, 138-139 [89 Cal.Rptr. 540]; Moss
Estate Co. v. Adler, 41 Cal.2d 581, 585 [261 P.2d 732]; Vogel v.
Thrifty Drug Co., 43 Cal.2d 184, 188 [272 P.2d 1].) "The ruling
of the trial judge will not be disturbed upon appeal absent a showing
by appellant of a clear abuse of discretion. [Citations.]" (Nelson
v. Specialty Records, Inc., supra, 11 Cal.App.3d at p. 139.) No
such showing here appears.
-FN 3. The colloquy between court and counsel at argument on the
motion for judgment on the pleadings suggests that the trial court
held the 1964 agreement violated public policy because it derogated
the community property rights of Betty Marvin, defendant's lawful
wife. Plaintiff, however, offered to amend her complaint to allege
that she and defendant reaffirmed their contract after defendant
and Betty were divorced. The trial court denied leave to amend,
a ruling which suggests that the court's judgment must rest upon
some other ground than the assertion that the contract would injure
Betty's property rights.
-FN 4. Defendant also contends that the contract was illegal because
it contemplated a violation of former Penal Code section 269a,
which prohibited living "in a state of cohabitation and adultery." (§ 269a
was repealed by Stats. 1975, ch. 71, eff. Jan. 1, 1976.) Defendant's
standing to raise the issue is questionable because he alone was
married and thus guilty of violating section 269a. Plaintiff, being
unmarried could neither be convicted of adulterous cohabitation
nor of aiding and abetting defendant's violation. (See In re Cooper
(1912) 162 Cal. 81, 85-86 [121 P. 318].)
The numerous cases discussing the contractual rights of unmarried
couples have drawn no distinction between illegal relationships
and lawful nonmarital relationships. (Cf. Weak v. Weak (1962) 202
Cal.App.2d 632, 639 [21 Cal.Rptr. 9] (bigamous marriage).) Moreover,
even if we were to draw such a distinction -- a largely academic
endeavor in view of the repeal of section 269a -- defendant probably
would not benefit; his relationship with plaintiff continued long
after his divorce became final, and plaintiff sought to amend her
complaint to assert that the parties reaffirmed their contract
after the divorce.
-FN 5. Defendant urges that all of the cited cases, with the possible
exception of In re Marriage of Foster, supra, 42 Cal.App.3d 577
and Bridges v. Bridges, supra, 125 Cal.App.2d 359, can be distinguished
on the ground that the partner seeking to enforce the contract
contributed either property or services additional to ordinary
homemaking services. No case, however, suggests that a pooling
agreement in which one partner contributes only homemaking services
is invalid, and dictum in Hill v. Estate of Westbrook, supra, 95
Cal.App.2d 599, 603 [213 P.2d 727] states the opposite. A promise
to perform homemaking services is, of course, a lawful and adequate
consideration for a contract (see Taylor v. Taylor (1954) 66 Cal.App.2d
390, 398 [152 P.2d 480]) -- otherwise those engaged in domestic
employment could not sue for their wages -- and defendant advances
no reason why his proposed distinction would justify denial of
enforcement to contracts supported by such consideration. (See
Tyranski v. Piggins (1973) 44 Mich.App. 570 [205 N.W.2d 595, 597].)
-FN 6. Although not cited by defendant, the only California precedent
which supports his position is Heaps v. Toy (1942) 54 Cal.App.2d
178 [128 P.2d 813]. In that case the woman promised to leave her
job, to refrain from marriage, to be a companion to the man, and
to make a permanent home for him; he agreed to support the woman
and her child for life. The Court of Appeal held the agreement
invalid as a contract in restraint of marriage (Civ. Code, § 1676)
and, alternatively, as "contrary to good morals" (Civ.
Code, § 1607). The opinion does not state that sexual relations
formed any part of the consideration for the contract, nor explain
how -- unless the contract called for sexual relations -- the woman's
employment as a companion and housekeeper could be contrary to
good morals.
The alternative holding in Heaps v. Toy, supra, finding the contract
in that case contrary to good morals, is inconsistent with the
numerous California decisions upholding contracts between nonmarital
partners when such contracts are not founded upon an illicit consideration,
and is therefore disapproved.
-FN 7. Sections 169 and 169.2 were replaced in 1970 by Civil Code
section 5118. In 1972 section 5118 was amended to provide that
the earnings and accumulations of both spouses "while living
separate and apart from the other spouse, are the separate property
of the spouse."
-FN 8. Defendant also contends that the contract is invalid as
an agreement to promote or encourage divorce. (See 1 Witkin, Summary
of Cal. Law (8th ed.) pp. 390-392 and cases there cited.) The contract
between plaintiff and defendant did not, however, by its terms
require defendant to divorce Betty, nor reward him for so doing.
Moreover, the principle on which defendant relies does not apply
when the marriage in question is beyond redemption (Glickman v.
Collins (1975) 13 Cal.3d 852, 858-859 [120 Cal.Rptr. 76, 533 P.2d
204]); whether or not defendant's marriage to Betty was beyond
redemption when defendant contracted with plaintiff is obviously
a question of fact which cannot be resolved by judgment on the
pleadings.
-FN 9. Our review of the many cases enforcing agreements between
nonmarital partners reveals that the majority of such agreements
were oral. In two cases (Ferguson v. Schuenemann, supra, 167 Cal.App.2d
413; Cline v. Festersen, supra, 128 Cal.App.2d 380), the court
expressly rejected defenses grounded upon the statute of frauds.
-FN 10. A great variety of other arrangements are possible. The
parties might keep their earnings and property separate, but agree
to compensate one party for services which benefit the other. They
may choose to pool only part of their earnings and property, to
form a partnership or joint venture, or to hold property acquired
as joint tenants or tenants in common, or agree to any other such
arrangement. (See generally Weitzman, Legal Regulation of Marriage:
Tradition and Change (1974) 62 Cal.L.Rev. 1169.)
-FN 11. We note that a deliberate decision to avoid the strictures
of the community property system is not the only reason that couples
live together without marriage. Some couples may wish to avoid
the permanent commitment that marriage implies, yet be willing
to share equally any property acquired during the relationship;
others may fear the loss of pension, welfare, or tax benefits resulting
from marriage (see Beckman v. Mayhew, supra, 49 Cal.App.3d 529).
Others may engage in the relationship as a possible prelude to
marriage. In lower socio-economic groups the difficulty and expense
of dissolving a former marriage often leads couples to choose a
nonmarital relationship; many unmarried couples may also incorrectly
believe that the doctrine of common law marriage prevails in California,
and thus that they are in fact married. Consequently we conclude
that the mere fact that a couple have not participated in a valid
marriage ceremony cannot serve as a basis for a court's inference
that the couple intend to keep their earnings and property separate
and independent; the parties' intention can only be ascertained
by a more searching inquiry into the nature of their relationship.
-FN 12. The cases did not clearly determine whether a nonmarital
partner could recover in quantum meruit for the reasonable value
of services rendered. But when we affirmed a trial court ruling
denying recovery in Hill v. Estate of Westbrook, supra, 39 Cal.2d
458, we did so in part on the ground that whether the partner "rendered
her services because of expectation of monetary reward" (p.
462) was a question of fact resolved against her by the trial court
-- thus implying that in a proper case the court would allow recovery
based on quantum meruit.
-FN 13. The Family Law Act, in Civil Code section 4452, classifies
property acquired during a putative marriage as "'quasi-marital
property,'" and requires that such property be divided upon
dissolution of the marriage in accord with Civil Code section 4800.
-FN 14. The putative spouse need not prove that he rendered services
in expectation of monetary reward in order to recover the reasonable
value of those services. (Sanguinetti v. Sanguinetti, supra, 9
Cal.2d 95, 100.)
-FN 15. The contrast between principles governing nonmarital and
putative relationships appears most strikingly in Lazzarevich v.
Lazzarevich, supra, 88 Cal.App.2d 708. When Mrs. Lazzarevich sued
her husband for divorce in 1945, she discovered to her surprise
that she was not lawfully married to him. She nevertheless reconciled
with him, and the Lazzareviches lived together for another year
before they finally separated. The court awarded her recovery for
the reasonable value of services rendered, less the value of support
received, until she discovered the invalidity of the marriage,
but denied recovery for the same services rendered after that date.
-FN 16. "Contracts may be express or implied. These terms
however do not denote different kinds of contracts, but have reference
to the evidence by which the agreement between the parties is shown.
If the agreement is shown by the direct words of the parties, spoken
or written, the contract is said to be an express one. But if such
agreement can only be shown by the acts and conduct of the parties,
interpreted in the light of the subject matter and of the surrounding
circumstances, then the contract is an implied one." (Skelly
v. Bristol Sav. Bank (1893) 63 Conn. 83 [26 A. 474], quoted in
1 Corbin, Contracts (1963) p. 41.) Thus, as Justice Schauer observed
in Desny v. Wilder (1956) 46 Cal.2d 715 [299 P.2d 257], in a sense
all contracts made in fact, as distinguished from quasi-contractual
obligations, are express contracts, differing only in the manner
in which the assent of the parties is expressed and proved. (See
46 Cal.2d at pp. 735-736.)
-FN 17. The Court of Appeal opinion in In re Marriage of Cary,
supra, does not explain why Paul Cary filed his action as a petition
for nullity. Briefs filed with this court, however, suggest that
Paul may have been seeking to assert rights as a putative spouse.
In the present case, on the other hand, neither party claims the
status of an actual or putative spouse. Under such circumstances
an action to adjudge "the marriage" in the instant case
a nullity would be pointless and could not serve as a device to
adjudicate contract and property rights arising from the parties'
nonmarital relationship. Accordingly, plaintiff here correctly
chose to assert her rights by means of an ordinary civil action.
-FN 18. The court in Cary also based its decision upon an analysis
of Civil Code section 4452, which specifies the property rights
of a putative spouse. Section 4452 states that if the "court
finds that either party or both parties believed in good faith
that the marriage was valid, the court should declare such party
or parties to have the status of a putative spouse, and, ... shall
divide, in accordance with Section 4800, that property acquired
during the union ...." Since section 4800 requires an equal
division of community property, Cary interpreted section 4452 to
require an equal division of the property of a putative marriage,
so long as one spouse believed in good faith that the marriage
was valid. Thus under section 4452, Cary concluded, the "guilty
spouse" (the spouse who knows the marriage is invalid) has
the same right to half the property as does the "innocent" spouse.
Cary then reasoned that if the "guilty" spouse to a
putative marriage is entitled to one-half the marital property,
the "guilty" partner in a nonmarital relationship should
also receive one-half of the property. Otherwise, the court stated, "We
should be obliged to presume a legislative intent that a person,
who by deceit leads another to believe a valid marriage exists
between them, shall be legally guaranteed half of the property
they acquire even though most, or all, may have resulted from the
earnings of the blameless partner. At the same time we must infer
an inconsistent legislative intent that two persons who, candidly
with each other, enter upon an unmarried family relationship, shall
be denied any judicial aid whatever in the assertion of otherwise
valid property rights." (34 Cal.App.3d at p. 352.)
This reasoning in Cary has been criticized by commentators. (See
Note, op. cit., supra, 25 Hastings L.J. 1226, 1234-1235; Comment,
In re Marriage of Carey [sic]: The End of the Putative-Meretricious
Spouse Distinction in California (1975) 12 San Diego L.Rev. 436,
444-446.) The commentators note that Civil Code section 4455 provides
that an "innocent" party to a putative marriage can recover
spousal support, from which they infer that the Legislature intended
to give only the "innocent" spouse a right to one-half
of the quasi-marital property under section 4452.
We need not now resolve this dispute concerning the interpretation
of section 4452. Even if Cary is correct in holding that a "guilty" putative
spouse has a right to one-half of the marital property, it does
not necessarily follow that a nonmarital partner has an identical
right. In a putative marriage the parties will arrange their economic
affairs with the expectation that upon dissolution the property
will be divided equally. If a "guilty" putative spouse
receives one-half of the property under section 4452, no expectation
of the "innocent" spouse has been frustrated. In a nonmarital
relationship, on the other hand, the parties may expressly or tacitly
determine to order their economic relationship in some other manner,
and to impose community property principles regardless of such
understanding may frustrate the parties' expectations.
-FN 19. Despite the extensive material available on the legislative
history of the Family Law Act neither Cary nor plaintiff cites
any reference which suggests that the Legislature ever considered
the issue of the property rights of nonmarital partners, and our
independent examination has uncovered no such reference.
-FN 20. See Bruch, op. cit., supra, 10 Family L.Q. 101, 113; Article,
op. cit., supra, 6 U.C. Davis L.Rev. 354; Comment (1975) 6 Golden
Gate L.Rev. 179, 197-201; Comment, op. cit., supra, 12 San Diego
L.Rev. 436; Note, op. cit., supra, 25 Hastings L.J. 1226, 1246.
-FN 21. Justice Finley of the Washington Supreme Court explains: "Under
such circumstances [the dissolution of a nonmarital relationship],
this court and the courts of other jurisdictions have, in effect,
sometimes said, 'We will wash our hands of such disputes. The parties
should and must be left to their own devices, just where they find
themselves.' To me, such pronouncements seem overly fastidious
and a bit fatuous. They are unrealistic and, among other things,
ignore the fact that an unannounced (but nevertheless effective
and binding) rule of law is inherent in any such terminal statements
by a court of law. The unannounced but inherent rule is simply
that the party who has title, or in some instances who is in possession,
will enjoy the rights of ownership of the property concerned. The
rule often operates to the great advantage of the cunning and the
shrewd, who wind up with possession of the property, or title to
it in their names, at the end of a so-called meretricious relationship.
So, although the courts proclaim that they will have nothing to
do with such matters, the proclamation in itself establishes, as
to the parties involved, an effective and binding rule of law which
tends to operate purely by accident or perhaps by reason of the
cunning, anticipatory designs of just one of the parties." (West
v. Knowles (1957) 50 Wn.2d 311 [311 P.2d 689, 692] (conc. opn.).)
-FN 22. In some instances a confidential relationship may arise
between nonmarital partners, and economic transactions between
them should be governed by the principles applicable to such relationships.
-FN 23. Toffler, Future Shock (Bantam Books, 1971) page 253.
-FN 24. We do not seek to resurrect the doctrine of common law
marriage, which was abolished in California by statute in 1895.
(See Norman v. Thomson (1898) 121 Cal. 620, 628 [54 P. 143]; Estate
of Abate (1958) 166 Cal.App.2d 282, 292 [333 P.2d 200].) Thus we
do not hold that plaintiff and defendant were "married," nor
do we extend to plaintiff the rights which the Family Law Act grants
valid or putative spouses; we hold only that she has the same rights
to enforce contracts and to assert her equitable interest in property
acquired through her effort as does any other unmarried person.
-FN 25. Our opinion does not preclude the evolution of additional
equitable remedies to protect the expectations of the parties to
a nonmarital relationship in cases in which existing remedies prove
inadequate; the suitability of such remedies may be determined
in later cases in light of the factual setting in which they arise.
-FN 26. We do not pass upon the question whether, in the absence
of an express or implied contractual obligation, a party to a nonmarital
relationship is entitled to support payments from the other party
after the relationship terminates.
-FN 27. We wish to commend the parties and amici for the exceptional
quality of the briefs and argument in this case.
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