Andrew Stevenson

This year saw the 90th birthday of Frankie Valli. A superb falsetto and tenor singer, both as a solo performer and as frontman of the Four Seasons, the artist formerly known as Francesco Castelluccio started performing in the early 1950s. Remarkably, he is still touring. His hits include Big Girls Don’t Cry and the story of The Four Seasons was the subject of popular musical Jersey Boys.

Mr Valli was also the plaintiff in a case which has contributed greatly in clarifiying divorce law in California. Ten years ago the Supreme Court of that state issued a ruling which was of considerable significance in explaining the law of “community property” there. The case, Frankie Valli v Randy Valli, was a celebrity case which actually had its own inherent importance in determining the law.

In Scotland, the issue of whether assets are matrimonial property or not is crucial in determining the outcome of financial claims on divorce. The character of assets and investments can raise quite tricky philosophical questions about how the nature of property can change. Various cases have analysed whether, for example, a house built after a marriage on non-matrimonial land acquired before the marriage is also non-matrimonial property.

In California, instead of matrimonial property, there is a similar concept, known as “community property”.

Mr Valli separated from third wife Randy in 2004 after 20 years of marriage. In the year before their split, the singer of Take Good Care of My Baby but also Let’s Hang On (To What We’ve Got) used funds from his and his wife’s joint bank account to buy a $3.75 million insurance policy upon his own life, the sole beneficiary being Randy. Joint funds were then used to pay the policy premiums.

The question was whether the policy was to be classified as “community property” of the spouses, or separate property, namely that of Mrs Valli alone. In particular, had the dealing changed the character of the asset?

The court of first instance in Los Angeles held that the policy was indeed community property, but this decision was reversed by the Court of Appeal. Mr Valli then appealed to the Supreme Court of the state. Justice Joyce Kennard opined that there was a “transmutational requirement of an express written declaration” by Mr Valli that the property was changing character from community to separate. In the absence of this rather unromantic document from the crooner, the defendant lost.

The Supreme Court observed that California has always been a community property state, the concept having travelled from Spain to Mexico and thence under the Treaty of Guadalupe Hidalgo (1848) which ceded a vast area of Mexican territory to the USA. By contrast, the vast majority of US states follow the principle of “equitable distribution” instead.

The case was also one of Justice Kennard’s last. She endured challenging times in her youth but managed to overcome adversity and disability and to thrive as a lawyer and a judge. She is Asian American, born in the Dutch East Indies the year before Japan invaded in 1941. Her father died in a prison camp when she was only one year old. She travelled to the Netherlands then emigrated to the USA as a Dutch Indonesian refugee in the early 1960s. Her achievement in being elevated to the Supreme Court of California, where she sat for 25 years, was as remarkable in its own way as Frankie Valli’s musical career.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.