This opinion is uncorrected and subject to revision in the Official Reports. This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)
M E M O R A N D U M
SUPREME COURT: QUEENS COUNTY
IA PART: 52
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CHANI LIGHTMAN
INDEX NO. 2396/96
BY: FLUG, J.
- against -
DATED: JUNE 1, 2000
DR. HYLTON LIGHTMAN
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The parties in this matrimonial action were married in New York on December 27, 1981. Plaintiff-wife was 21 years of age and defendant-husband was 28 years old. Both are members of the Orthodox Jewish comunity and the marriage resulted pursuant to the traditions of that community.
The defendant at the time was a citizen of the Republic of South Africa, having been born and raised there. He came to New York seeking a wife. He was and is a medical doctor, while the plaintiff-wife was a registered nurse.
Shortly after their marriage they established their residence in South Africa, this having been agreed upon prior to the actual marriage.
Upon her arrival in South Africa, the plaintiff-wife became aware that the customs and laws of that country severely limited the rights of women. In addition, she discovered that her license and training did not provide her the same opportunity to pursue a career as they did in this country. This situation was further exacerbated by her strict adherence to the tenets of her religion.
The couple's residence and circle of friends in South Africa was generally restricted to the Orthodox Jewish community, and among their acquaintances, not surprisingly, was an attorney.
In the summer of 1982 the couple was visited by the plaintiff's parents, and during the course of that visit the plaintiff's father made several inquiries of the attorney with regard to his daughter's legal status, especially with regard to financial issues.
It should be noted at this point that, notwithstanding the fact that he had a medical degree, the defendant was still considered a "poor boy."
As a result of the inquiries to the attorney and the plaintiff's desire to avoid the restrictive provisions of South African law, the parties executed a postnuptial contract on March 17, 1983. Under South African law at that time, a wife had a legal status similar to that of a minor child and was subject to her husband's "marital power." One example of this power was that plaintiff could not even write checks without her husband's signature. A marriage of this nature was also considered to be "in community of property" whereby all property, assets and debts were merged into one estate, even those obtained through inheritance or obtained prior to the marriage.
At that time, it was not uncommon, particularly for professional couples, to avoid these strictures by entering into postnuptial agreements that rendered parties "married out of community of property." The effect of such agreements, and notably of the parties' agreement, was that each party would "respectively retain, own, possess and enjoy all of his or her estate." Thus, in order to avoid the inequities of being treated like a minor under the law, plaintiff was obligated to surrender her rights to share equally in the assets and earnings accumulated during the course of the marriage.
Under the parties' agreement, defendant "donated" to plaintiff the parties' wedding gifts worth approximately R4000 (South African currency) and an "unidentified residence" worth approximately R60,000. However, during the course of this long marriage, the parties had four children, relocated to the United States and accumulated assets totaling approximately $750,000, the majority of which, of course, are in defendant's name.
At about the time of the parties' relocation to the United States, South African law was amended so as to abolish the "marital power." (Matrimonial Property Act No. 88 of 1984, ch II, 1984 SA Family and Persons 88, Butterworths Statutes of South Africa.) Significantly, following the enactment of the Matrimonial Property Act of 1984, many South African couples were permitted to alter their postnuptial agreements to avoid the "separate property" consequences created when they took their marriages "out of community property." However, since the parties were residing in the United States by that time, they never made such an amendment to their March 1983 agreement. In this present action for divorce, defendant now seeks to enforce the agreement against plaintiff.
By short form order dated November 30, 1999 this court found that plaintiff has met her initial burden, as most recently articulated in the Court of Appeals in Matter of Greiff (92 NY2d 341), of establishing "a fact-based, particularized inequality" arising from the circumstances surrounding the execution of the agreement. Upon a most cursory review of the circumstances in this case, a higher degree of scrutiny is plainly necessitated by the fact that the parties were represented by the same attorney in the drafting and execution of the agreement. (Levine v Levine, 56 NY2d 42.) Moreover, under Greiff, the court shall examine all of the relevant evidence and standards to determine the nature of the relationship between the parties at the time of execution. (Matter of Greiff, 92 NY2d, supra, at 347.)
Here, plaintiff was 21 years old at the time of the marriage and defendant, already qualified as a medical doctor, was 28. Plaintiff was an educated American citizen, raised in the United States, who emigrated to South Africa only as a result of her marriage. Defendant, in contrast, was a South African citizen, returning to his home country after the marriage, and to a society where he was well familiar with the laws and customs. In construing the circumstances surrounding the execution of a separation agreement, courts may properly consider the parties' age, experience and comparative sophistication. (Pommer v Trustco Bank, 183 AD2d 976; Sheils v Sheils, 32 AD2d 253; 45 NY Jur 2d Domestic Relations ' 177.)
Based upon these factors, this court finds, after hearing the testimony of both of the parties, and that of their "joint" lawyer, and weighing the credibility and inferences drawn therefrom, that the circumstances at the time of the agreement were tainted by such "extra leverage" on the part of defendant so as to render the agreement invalid. (Matter of Greiff, 92 NY 2d, supra, at 346; citing Matter of Phillips, 293 AD2d 483; Sheils v Sheils, supra.) In sum, defendant has failed to meet his burden of disproving the existence of undue influence and overreaching in the execution of the agreement. (Matter of Greiff, supra.)
The court finds, however, that a more compelling reason for invalidating the agreement exists in light of the public policies of both this State and of South Africa. It is undisputed in the parties' memoranda of law that since the time of execution of the agreement, the laws of South Africa have been significantly amended to abolish the institutionalized inequalities created between both races and genders. Following the enactment of the 1984 Matrimonial Property Act, South African couples who had contracted to be married "out of community property" were permitted to amend the "separate estate" provisions of their agreements to a system of "accrual" or "joint administration" of assets. (Matrimonial Property Act No. 88 of 1984, ch IV [25], 1984 SA Family and Persons 88, Butterworths Statutes of South Africa.) Certainly, it is evident that the laws which gave rise to the agreement that defendant now wishes to assert against plaintiff are not reflective of the present state of South African law and policy.
Moreover, when viewed in the light of the public policy of this State, the agreement is similarly flawed. Courts in New York State have not hesitated to declare null and void those agreements that violate its public policy. (Haas v Haas, 298 NY 69; Bruno v Bruno, 51 AD2d 862; Pellman v Pellman, 88 Misc 2d 251.) In analyzing the public policies at issue herein, of paramount concern in this State are the principles of equitable distribution of marital assets, and the abrogation of gender-based distinctions therein. (See, Matter of Greiff, supra; Greschler v Greschler, 51 NY2d 368; Goldfarb v Goldfarb, 86 AD2d 459.) Plainly, the laws of equitable distribution were in effect in this State at the time of the parties' marriage in Rockland County, New York in December 1981. (Domestic Relations Law ' 236[B].) Moreover, the laws of this State, at the time of the marriage, and indeed to the present, have never recognized a "marital power" such as had existed in South Africa.
Despite the equally strong public policies in this State favoring the sanctity and freedom to contract, it has been acknowledged that even the validity of a contract may be affected by subsequent social changes leading to new public policies. (Goldfarb v Goldfarb, supra, at 461.) While principles of comity indeed extend to upholding the validity of foreign divorce decrees and marital agreements, such recognition may be denied when those agreements violate the strong public policies of this State. (Greschler v Greschler, supra.) Insofar as the parties' contract was created under laws premised upon gender inequality, and imposed drastic consequences upon plaintiff's rights, the agreement is violative of the public policies of this State.(Note 1)
The public policy of this State is reflected in the present Domestic Relations Law, wherein "'marital property' shall mean all property acquired by either or both spouses during the marriage * * * regardless of the form in which title is held, except as otherwise provided in an agreement pursuant to section three of this part." Pursuant to Domestic Relations Law '236 (B)(3) "[a]n agreement between the parties, made before or during the marriage, shall be valid and enforceable * * * provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment." Here, it is all too evident from the parties' testimony as to the surrounding circumstances of the execution of the agreement, that the terms were anything but fair and reasonable.
Intrinsic to the law and policies of this State is that marital agreements may be invalidated where they have been entered into under circumstances of duress. (Vandenburgh v Vandenburgh, 194 AD2d 957; Jaus v Jaus, 168 AD2d 487; Sheils v Sheils, supra.) Indeed, in Sheils, an analogous case, the reality of societal pressures at the time of execution were a factor leading to circumstances of duress. The plaintiff in Sheils was the mother of an illegitimate child born in New York State in 1967. Anxious to legitimize the child, she signed an agreement drafted by the child's father, a law clerk who had not yet passed the bar exam, whereupon she agreed to be married to the defendant "in name only," to waive all claims to support, and to give defendant a power of attorney to obtain a Mexican divorce. The Appellate Division reversed the trial court's dismissal of the complaint, finding that the circumstances alleged by plaintiff, if proven to be true, rendered the agreement properly subject to attack for fraud, duress or overreaching. (Sheils v Sheils, 32 AD2d, supra, at 255.)
In the instant case, it is the determination of this court that to enforce the terms of an agreement reached under such dire circumstances as were faced by plaintiff at the time of execution, especially after a marriage of such long duration and financial success due in large part to the parties relocation to this State, would be particularly unconscionable. Therefore, insofar as the parties' agreement is herein declared both unconscionable and void as against public policy, the parties' financial circumstances should be examined de novo, with equitable distribution to be determined as if the agreement did not exist. (Bruno v Bruno, supra.)
S/
J.S.C.
Note 1. To the extent that defendant relies on Brassey v Brassey (154 AD2d 293), which upheld a South African postnuptial agreement, this court respectfully declines to follow the same, particularly in light of Matter of Greiff (supra.)