Abbas Hadjian on KIRN: May 12, 2017
40 Divorces Which Changed California Family Law
Development of Pre-Marital Agreements in California
San Diego, California, May 24, 2011: Court of Appeal of California, Fourth Appellate District, Division One held that a spousal support waiver in the parties’ 1999 premarital agreement cannot be invalidated based on the Fam. Code, § 1612, subd. (c), enacted in 2002. The court of appeal held that § 1612, subd. (c), requiring legal representation by the spouse who waives the spousal support was a material change in the law as to enforceability of a spousal support waiver and the Legislature did not intend it to apply retroactively.
In addition, there was substantial evidence that the wife entered into the agreement voluntarily, was advised but refrained from obtaining legal counsel, understood the agreement, and there was no evidence of duress, fraud, or undue influence. Wife argued that she signed the agreement without the benefit of having an attorney, under duress of having the preparation for the parties’ wedding was contracted and completed, and that canceling the wedding would have created great embarrassment.
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Washington, February 23, 2010: Husna (Wife, 19 ) from Canada, and Khalid (Husband, 26) from U.S., are children of Afghan immigrants. They married in an Islamic marriage ceremony in Washington, during which Khalid promised in writing to make an “immediate” cash gift of $100.00, and a “future” gift of $20,000.00, to Husna as her Mahr (i.e. dowry a traditional Afghani-Islamic Bridal Gift).
Upon filing for divorce by Husna 13 months later, she requested, and the trial Court ordered Khalid to pay $20,000.00 as a valid contractual obligation to Husna. Court of Appeals of Washington, Division Three, Case No. 27616-3-III, disagreed and reversed. The Court found that Khalid did not speak, read, or write Farsi, and did not know about the Mahr until 15 minutes before he signed the agreement. An uncle explained the obligation to Khalid after he had signed it. The Court found that the agreement was not enforceable under neutral principles of contract law.
Note by Abbas Hadjian: The reader is cautioned that opinion of the Appellate Court of Washington contains errors in defining and/or understanding the Mahr and the Islamic marriage. Mahr is not a “prenuptial agreement”. Is a religiously sanctioned promise by the Groom to make (present and/or future) cash gift to the Bride. Is normally negotiated by the Bride and Groom relatives in advance of the wedding, and disclosed at the ceremony and recorded in the marriage certificate. In many Islamic cultures a marriage without Mahr is not valid.
The marriage itself, is like a Christian wedding, and includes religious uttering, but is not “an engagement ceremony”, which usually is conducted few months/weeks before. It establishes and solemnizes the martial relationship between the parties religiously, whether or not the marriage is civilly recorded or recognized.
Prenuptial agreements are becoming the norm among a generation of financially secure men who are rejecting the more romantic notions of their fathers.