Jenny v. Jenny

WILBUR, J.

Plaintiff appeals from a judgment rendered against her in an action for support and maintenance against her husband, the defendant. The marriage occurred about 4 or 5 o’clock P: M., and at 5:20 on the same day, September 25, 1915, the parties separated and never thereafter lived together as husband and wife. The defendant alleges and testified and the court found that this separation was by mutual consent. As was said in

Mayr

v. Mayr, 161 Cal. 134, 140, [118 Pac. 546]: “A wife living separate and apart from her husband cannot, in the absence of special agreement therefor, compel him to support her while living so apart, unless such separation is caused by misconduct on his part.” The testimony of the husband, and indeed the conduct of the parties, support the finding by the court that the separation was by consent. It is claimed, however, by the appellant that such separation by consent was a result of a prenuptial agreement between the parties, by which it was arranged that they should be married, but should never live together; that the plaintiff should not assume defendant’s name; that each should retain their own property and all their future earnings and acquisitions, and that in the future the plaintiff would “grant a divorce to the defendant”; that such an agreement was void and as against public policy, and that therefore the agreement of separation after the marriage, in

[606]

pursuance of such void agreement before marriage, was also void, and that plaintiff is entitled* to support and maintenance. If, as insisted by appellant,

everything

that flowed from the prenuptial agreement to

marry,

separate, and thereafter secure a divorce was void, the marriage would be also void, and yet marriage is the basis of plaintiff’s action. The agreement made the evening before the marriage, it is conceded, was void. The marriage which followed was valid and created all the mutual obligations which the law attaches thereto. Plaintiff was under no obligation to consent to a separation, and might have insisted upon living with her husband and charged him with desertion upon failure so to do. She did in fact consent to their separation, and that consent deprived her of her right to separate maintenance and support so long as the separation continued by mutual consent.