Relates to the proof of acknowledgment of the agreement of the parties in an action or proceeding

The measure would amend subdivision 3 of Part B of section 236 of the Domestic Relations Law so that a notary's inadvertent mistake does not invalidate an otherwise valid written agreement that both parties undisputedly signed.

Subdivision (3) currently requires that, in order to be valid, a written agreement made before or during marriage must be "subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." The provision thus adopts the requirement, set forth in section 291 of the Real Property Law, that each signature must be "duly acknowledged by the person executing the same" or "proved" by use of a subscribing witness.

Due to the impracticality of the latter alternative, parties almost invariably opt for the acknowledgment option. A notary public is called, verifies that the individual who is signing in the notary's presence is indeed the individual described in the document, and so attests in the usual catechism.

The acknowledgment requirement fulfills two functions. First, it "serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person." Matisoff v. Dobi, 90 NY2d 127, 133 (1997). Second, "it necessarily imposes on the signer a measure of deliberation in the act of executing the document." Galetta v. Galetta, 21 NY3d 186, 192 (2013).

However, there is a problem with the inflexible nature of the current requirement concerning certification of the acknowledgment. The problem was plainly demonstrated by the Court of Appeals' recent ruling in Galetta. In that case, it was undisputed that both parties had signed the subject agreement, and, more than that, that both parties had done so in the presence of a notary who was retained specifically for that purpose. Unfortunately, the notary retained to notarize the husband's signature inadvertently omitted a portion of the "boilerplate" language stating that the notary had confirmed the identity of the signatory, with the consequence that the notary's certification of the acknowledgment was defective. For that reason, and also because the notary could (understandably) not remember an entirely unmemorable event that had occurred many years earlier, a prenuptial agreement that both parties had undisputedly signed was deemed legally invalid.

The proposed amendment would not dispense with the requirement that the agreement be "duly acknowledged" or "proved" by a subscribing witness. We believe that the requirement is good policy, serving the two purposes noted above. So, as before, if either signatory fails to

sign in the presence of a notary formally retained to certify the signature, the agreement will not be valid.

This measure would, however, allow some flexibility in the manner in which the acknowledgment is proven. More specifically, if a notary is called to certify the written acknowledgment where the notary's acknowledgment is defective in form, when the signing of the document by the parties and the parties' acknowledgment are proven, the court may ignore defects as to the form of the acknowledgment. The party may, for example, present testimony from the notary to the effect that his or her customary practice was to ask and confirm that the person signing the document was the same person named in the document.

Such was proposed by the Appellate Division majority in Galetta, and we believe that the idea is a good one. By injecting a modicum of flexibility into the statute, we can continue to ensure that marital

and pre-marital agreements are authentic and are preceded by some measure of deliberation, while also ensuring that a notary's inadvertent error does not irrevocably alter the parties' lives.

This measure, which would have no fiscal impact on the public treasury, would take effect immediately.

Legislative History:

None. New Proposal.