Fricke v. Fricke ( 1950 )

Gehl, J.

Because of the basis of our conclusion we do not recite all of the facts to which our attention has been called. Counsel have referred to testimony bearing upon the contention that the plaintiff was fraudulently induced to enter into the antenuptial agreement and to that which bears upon defendant’s contention that the circumstances proved are such as to call for a determination applicable only to the facts of this case. We are of the opinion that any antenuptial agreement which attempts to limit the husband’s liability in the event of separation or divorce is void as against public policy.

There are three parties to a marriage contract — the hus-' band, the wife, and the state. The husband and wife are presumed to have, and the state unquestionably has, an interest in the maintenance of the relation which for centuries has been recognized as a bulwark of our civilization. That unusual conditions have caused a marked increase in the divorce rate does not require us to change our attitude toward the marital relation and its obligations, nor should it encourage the growth of a tendency to treat it as a bargain made with as little concern and dignity as is given to the ordinary contract. Consideration of only material matters, as distinguished from those which concern its religious and moral aspects, demands that the state keep its hand upon the obligation of the husband to maintain and support his wife. The court should not look with favor upon an agreement which may tend to permit a reservation in the mind of the husband when he assumes the responsibility of maintaining his spouse in such comfort as he is able to provide and until his death or the law relieves him of it.

The state has declared its interest in the marital contract and its purpose to preserve its control over the husband’s obligation. Sec. 247.10, Stats., requires that in a divorce action a stipulation by the parties for a division of estate or for alimony to be effective must have the approval of the court. It would seem that if at that stage the court should.be consulted there is as good reason to require that a husband should not be given the means to relieve himself from the obligation of his marital contract to provide for his wife until death or the process of law should intervene.

This court has had frequent occasion to consider ante-nuptial contracts. In each of the cases only the provisions of the contract with respect to the disposition of property on the death of one of the parties were before it. The question of the validity of provisions purporting to limit the husband’s liability in the event of divorce or separation has not been before the court.

Counsel for defendant rely heavily upon language used by the court in Bibelhausen v. Bibelhausen, 159 Wis. 365, 389, 150 N. W. 516. True, much is there said about the recognized right of the parties to a marriage to contract with respect to the wife’s right of dower and other rights in the estate of her husband, and language is used which can be construed to support the contention of the defendant in this case. But the court said:

“Whether such an agreement as the one here would be binding on the wife in case of a separation, need not be dealt with.”

Only the provisions of the agreement limiting the wife’s right to share in her husband’s estate upon his death were dealt with in that case.

At least a majority, if not all of the courts which have considered the matter, have held that any antenuptial contract which provides for, facilitates, or tends to induce a separation or divorce of the parties after marriage, is contrary to public policy and is therefore void. Anno. 70 A. L. R. 826. Quite generally the courts have said that the contract itself invites dispute, encourages separation, and incites divorce proceedings.

What was said by the court in Moorehead’s Estate, 289 Pa. 542, 551, 137 Atl. 802, 52 A. L. R. 1251, with respect to a situation somewhat similar to that presented in the instant case can very well be applied here:

“Public policy is not so vague and wavering a matter as not to be rightly invoked in a case of this character, where the degenerating tendencies of marital relations of the present day are so faithfully exemplified by one who comes into court and demands judicial condonation of his violations of law. In every civilized country is recognized the obligation, sacred as well as lawful, of a husband to protect and provide for his family, and to sustain the claim of the husband in the case at bar would be to invest him with a right to be both a faithless husband and a vicious citizen. This case reaches beyond the concern of the immediate parties to it. It affects the status of the family as being the foundation of society and civilization, and hence in a very certain sense is of wide public concern.

“ ‘The marriage contract once entered upon, becomes a relation rather than a contract and invests each party with a status toward the other and society at large, involving duties and responsibilities which are no longer matter for private regulation, but concern to the commonwealth.’ Coy v. Humphreys., 142 Mo. App. 92, 125 S. W. 877.”

Although dictum, the expression of this court in Ryan v. Dockery, 134 Wis. 431, 434, 114 N. W. 820, is also applicable :

“The law requires a husband to support, care for, and provide comforts for his wife in sickness as well as in health. This requirement is grounded upon principles of public policy. The husband cannot shirk it, even by contract with his wife, because the public welfare requires that society be thus protected so far as possible from the burden of supporting those of its members who are not ordinarily expected to be wage earners, but may still be performing some of the most important duties pertaining to the social order. Husband and wife may contract with each other before marriage as to their mutual property rights, but they cannot vary the personal duties and obligations to each other which result from the marriage contract itself.”

A quotation from another opinion rendered in a case involving circumstances, facts, and an agreement similar to those found in the case at bar is properly inserted:

“. . . it is beneficial to society that the marital relation should not be disturbed or its happiness marred, but that it should be upheld and encouraged, and that the parties to it should not be led into the breaking of its vows by the allurements of any stipulations which they may enter into before marriage.” Stratton v. Wilson, 170 Ky. 61, 68, 185 S. W. 522.

We conclude that an antenuptial contract which purports to limit the husband’s liability in the event of separation or divorce, regardless of the circumstances motivating its adoption or those attending its execution, is void as against public policy.

Manifestly the trial judge did not consider what provision should be made for the plaintiff in the way of division of estate or alimony because he concluded that he was bound by the provisions of the agreement.

The action is remanded for such allowance to the plaintiff as the court may determine she is entitled to under the provisions of sec. 247.26, Stats.

By the Court. — Judgment reversed for further proceedings in accordance with this opinion.

The following opinion was filed on May 8, 1950: