EDMONDS, J. Willie Patton is defending the suit of her husband for a divorce and is asking for a decree in her favor upon a cross-complaint. At the time of the separation of the parties they entered into a property settlement agreement in which the wife released the husband from “all claims whatsoever” for support or attorney’s fees. Upon the hearing of an order to show cause, Mrs. Patton was allowed alimony pendente lite and an additional amount for attorney’s fees and costs. By his appeal from that order, the husband challenges the wife’s right to such an award upon the ground that it violates the provisions of their contract and a later one executed by them.
The parties married in 1943, and separated 18 months later. At that time, they entered into a property settlement agreement by which, in consideration of $500, the wife released to her husband all interest in specifically described property. The contract also provided: “Husband shall not be liable for support, maintenance, costs or attorney’s fees of Wife and in this respect wife releases husband for all claims whatsoever. ...”
A reconciliation was followed by a brief resumption of marital relations, but in June, 1945, the parties again separated. Another contract was then executed in which they “ratified and confirmed” the prior agreement and the wife accepted $250 “in full settlement of all claims and demands, and of all property rights of the parties. ’ ’
Six months after the date of this agreement, the wife sued to cancel both contracts upon the grounds of lack of consideration and the alleged fraud of the husband. At that time there was pending an action for divorce commenced by [522]the husband in which the wife had filed a cross-complaint. The two actions were consolidated and, upon a trial, the court concluded that neither party was entitled to a divorce. As to the contracts, it found that each of them was valid, being based upon a valid consideration and not executed as the result of any fraud of the husband. Mrs. Patton appealed from that portion of the judgment determining the validity of the agreements, but her appeal was dismissed for lack of prosecution and the determination is now final.
In the meantime, the husband commenced the present action and the wife cross-complained, asking for a decree upon a cause of action based upon acts allegedly occurring after the entry of the judgments in the consolidated case but before the appeal was dismissed. Following the filing of an affidavit made by Mrs. Patton in which she asserted that she was without funds necessary for her support and the defense of' the action and her husband had possession of specified community property, he was ordered to show cause why he should not be required to pay her a reasonable amount for her maintenance and for counsel fees.
When the matter came on for hearing, Mrs. Patton testified that she was not working and had no money. The husband offered in evidence the two contracts of the parties, and they were received without objection from the wife. The trial judge then stated: “I don’t care anything about these documents, but I will make an order for the support of this woman pending the hearing of the divorce action . . .: I will make an order for counsel fees and for her support. ’ ’ By stipulation of counsel, the judgment roll in each of the prior actions between the parties was then made a part of the record, and the court ordered the husband to pay to Mrs. Patton $100 per month “as and for alimony for her support and maintenance during the pendency of this action,” $100 on account of attorney’s fees and $10 on account of costs. The appeal is from that order.
The appellant contends that although a court is authorized, in its discretion, to require the payment of alimony pendente lite, attorney’s fees and costs, a wife by contract may waive her right to such allowances. Therefore, he argues, it was error to make the award to Mrs. Patton as it violates the provisions of the property settlement agreements which were made in good faith for a valuable consideration. The wife relies upon the applicable statutory provisions and maintains [523]that the court cannot be deprived of its power by a contract between the parties.
“Property settlement agreements occupy a favored position in the law of this state and are sanctioned by the Civil Code. (Hill v. Hill, 23 Cal.2d 82, 89 [142 P.2d 417]; Hensley v. Hensley, 179 Cal. 284, 287 [183 P. 445]; Civil Code sec. 158, 159) . . . When the parties have finally agreed upon the division of their property, the courts are loath to disturb their agreement except for equitable consideration.” (Adams v. Adams, 29 Cal.2d 621, 624 [177 P.2d 265].)
A waiver is the intentional relinquishment of a known right (First Nat. Bank v. Maxwell, 123 Cal. 360 [55 P.980, 69 Am.St.Rep. 64]; Jones v. Maria, 48 Cal.App. 171 [191 P. 943]; 25 Cal.Jur. 926) and anyone may waive the provisions of a law or a contract for his benefit unless such a waiver would be against public policy. (Civ. Code, §§ 3268, 3513; Chesney v. Bryam, 15 Cal.2d 460 [101 P.2d 1106]; Leonard v. Board of Education, 36 Cal.App.2d 595 [97 P.2d 1032].)
Section 137 of the Civil Code provides: “When an action for divorce is pending, the court may, in its discretion, require the husband ... to pay as alimony any money necessary to enable the wife ... to support herself ... or to prosecute or defend the action. ...” But to obtain such an order, there must be a showing of necessity or the award is improper. (Kellett v. Kellett, 2 Cal.2d 45 [39 P.2d 203]; White v. White, 86 Cal. 212 [24 P.1030]; Sharon v. Sharon, 75 Cal. 1 [16 P. 345]; Falk v. Falk, 48 Cal.App.2d 780 [120 P.2d 724].) The purpose of the statute was to protect an impoverished wife by requiring her husband, if he is able to do so, to provide money for her support and the fees of counsel to preserve her rights in the event that she has no means available for that purpose. Accordingly, it has been held that in a divorce action, until the court has either approved or disapproved a property settlement agreement, even though by agreement the wife has waived all rights to alimony, counsel fees, and costs, an award may be made for necessary support and counsel fees pendente lite. (Locke Paddon v. Locke Paddon, 194 Cal. 73 [227 P. 715]; Steinmetz v. Steinmetz, 67 Cal.App. 195 [227 P. 713].) But in the present case, the court was confronted by two contracts admittedly made by the wife, in each of which, for a stated money consideration, she waived her right to alimony and attorney’s fees. She made no claim that these agreements were not binding upon her. No objection was made to their introduction in evidence [524]and she stipulated that the judgment in which the court held that they were executed for a valid consideration and not obtained by any fraud of the husband might also be made a part of the record.
Under these circumstances, as in Majors v. Majors, 70 Cal.App.2d 619 [161 P.2d 494], the contract “stood in the way ... of any judgment for plaintiff’s support contrary to or inconsistent with its provision, and the court could not properly ignore its existence. If there was no good reason for questioning the validity or fairness of the agreement and for placing that matter in issue, then there was no good reason for refusing to approve it. In order to dispose of the matters of community property and support, the agreement had to be regarded as valid, in which case the judgment should have followed it, or it had to be found invalid and therefore ineffective to influence or control the judgment.” The award challenged by Majors was for permanent alimony, but the legislative purpose of section 139 of the Civil Code> which authorizes the court to require a husband to support his wife after they are divorced, has a stronger social purpose than that which underlies the provision for temporary alimony. (McCaleb v. McCaleb, 177 Cal. 147 [169 P. 1023]; Millar v. Millar, 175 Cal. 797 [167 P. 394, Ann.Cas. 1918E 184, L.R.A. 1918B 415]; Simpson v. Simpson, 21 Cal.App. 150 [131 P. 99].)
The Steinmetz and Locke Paddon decisions, supra, have not been impliedly overruled by the recent Adams case, supra, as is contended. In that decision, this court considered some of the legal consequences which follow the execution of a valid property settlement agreement. The controversy concerned a decree which awarded permanent support contrary to the provisions of the agreement of the parties although the wife “presented no evidence showing that it was unfair nor was any such evidence elicited by the trial court.” The wife’s complaint in the Locke Paddon litigation charged that a property settlement agreement signed by her had been obtained by the fraud of the husband, and the court upheld an award of temporary alimony and counsel fees pending a trial of the issue in regard to the right to a divorce and the validity of their contract. The decision in the Steinmetz case stands upon the same ground, for by the pleadings in the husband’s action for divorce, the wife attacked the agreement she had made as fraudulent and void.
[525]In the present suit, Mrs. Patton did not charge, either by her pleadings nor by the affidavit presented in support of her application for alimony and counsel fees, that the agreements she had made were obtained by any fraud of the husband nor that they were inequitable. She made no objection when they, and the judgment upholding their validity were offered in evidence, and she did not ask the court to allow her to then present proof which would support a determination that she should not be bound by them. Under these circumstances, the trial court abused its discretion in refusing to consider the effect of these agreements as evidence bearing upon the wife’s right to support and in making an order for alimony and counsel fees regardless of their validity.
The judgment is reversed.
Gibson, C. J., and Shenk, J., concurred.