Posner v. Posner

• Decision Date: 25 March 1970
• Docket Number: No. 37162,37162
• Citation: 233 So.2d 381
• Parties: Victor POSNER, Petitioner, v. Sari POSNER, Respondent.
• Court: Florida Supreme Court

Page 381

233 So.2d 381

Victor POSNER, Petitioner, v. Sari POSNER, Respondent.

No. 37162.

Supreme Court of Florida.

March 25, 1970.

Frates, Fay, Floyd & Pearson, Ray H. Pearson and Guy B. Bailey, Jr., Miami, for petitioner.

Broad & Cassel and Sibley, Giblin, Levenson & Ward, Marion E. Sibley and Irving B. Levenson, Miami Beach, for respondent.

ROBERTS, Justice.

This cause is before the court on rehearing granted on petition for certiorari to review the decision of the Third District Court of Appeal in Posner v. Posner, Fla.App.1968, 206 So.2d 416. Both parties had appealed to the appellate court for reversal of the decree of the Chancellor entered in a divorce suit--the wife having appealed from those portions of the decree awarding a divorce to the husband and the sum of $600 per month as alimony to the wife pursuant to the terms of an antenuptial agreement between the parties, and the husband having attacked, by cross-appeal, the award of $600 per month support money for each of the two minor children of the parties.

The three appellate judges who considered the appeals agreed upon the affirmance of the decree of divorce to the husband and the award for child support of $1,200 per month. However, each took a different position respecting the antenuptial agreement concerning alimony. Their respective views were (1) that the parties may validly agree upon alimony in an antenuptial agreement but that the trial court is not bound by their agreement; (2) that such an agreement is void as against public policy; and (3) that an antenuptial agreement respecting alimony is entitled to the same consideration and should be just as binding as an antenuptial agreement settling the property rights of the wife in her husband's estate upon his death. They have certified to this court, as one of great public interest, the question of the validity and binding effect of an antenuptial agreement respecting alimony in the event of the divorce or separation of the parties. We have concluded that jurisdiction should be accepted, as authorized by Section 4(2), Article V, Florida Constitution, F.S.A.

At the outset we must recognize that there is a vast difference between a contract made in the market place and one relating to the institution of marriage.

It has long been the rule in a majority of the courts of this country and in this State that contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy. See Gallemore v. Gallemore, 1927, 94 Fla. 516, 114 So. 371; Allen v. Allen, 1933, 111 Fla. 733, 150 So. 237. The reason for the rule lies in the nature of the marriage contract and the interest of the State therein.

At common law, the so-called 'matrimonial causes', including divorce, were cognizable only in the Ecclesiastical Courts. Because of the Church's view of the sanctity of the nuptial tie, a marriage valid in its inception would not be dissolved by an absolute divorce A vinculo matrimonii, even for adultery--although such divorces could be granted by an Act of Parliament. Therefore, the divorce was only from bed and board, with an appropriate allowance for sustenance of the wife out of the husband's estate. See Ponder v. Graham, 1851, 4 Fla. 23; Chitty's Blackstone, Vol. I, Ch. XV, 432, 441. We have, of course, changed by statute the common-law rule respecting the indissolubility of a marriage valid in its inception; but the concept of marriage as a social institution that is the foundation of the family and of society remains unchanged. See 38 Am.Jur., Marriage, Sec. 8, p. 185. Since marriage is of vital interest to society and the state, it has frequently been said that in every divorce suit the state is a third party whose interests take precedence over the private interests of the spouses. See Underwood v. Underwood, 1868, 12 Fla. 434; Light v. Meginniss, 1945, 156 Fla. 61, 22 So.2d 455; Pickston v. Dougherty, Fla.App.1959, 109 So.2d 577; Wall v. Wall, Fla.App.1961, 134 So.2d 288.

The state's interest in the preservation of the marriage is the basis for the rule that a divorce cannot be awarded by consent of the parties, see Underwood v. Underwood, supra, 12 Fla. 434, as well as the doctrine of corroboration applicable in divorce suits, see Pickston v. Dougherty, Fla.App.1959, 109 So.2d 577. In the Underwood case this court said that it 'would be aiming a deadly blow at public morals to decree a dissolution of the marriage contract merely because the parties requested it;' and in the Pickston case it was noted that the 'prime object of the corroboration doctrine is to prevent collusion and to forestall any attempt which might otherwise be made to destroy the marital relationship falsely.'

And it is this same public policy that is the basis for the rule that an antenuptial agreement by which a prospective wife waives or limits her right to alimony or to the property of her husband in the event of a divorce or separation, regardless of who is at fault, has been in some states held to be invalid. See the cases collected in the annotation in 57 A.L.R.2d 942 et seq.; 27 Am.Jur., Husband and Wife, Sec. 275, p. 881, and Sec. 326, p. 923; Werlein v. Werlein, 1965, 27 Wis.2d 237, 133 N.W.2d 820; Crouch v. Crouch, 1964, 53 Tenn.App. 594, 385 S.W.2d 288; Motley v. Motley, 1961, 255 N.C. 190, 120 S.E.2d 422. The reason that such an agreement is said to 'facilitate or promote the procurement of a divorce' was stated in Crouch v. Crouch, supra, as follows:-

'Such contract could induce a mercenary husband to inflict on his wife any wrong he might desire which the knowledge his pecuniary liability would be limited. In other words, a husband could through abuse and ill treatment of his wife force her to bring an action for divorce and thereby buy a divorce for a small fee less than he would otherwise have to pay.'

Antenuptial or so-called 'marriage settlement' contracts by which the parties agree upon and fix the property rights which either spouse will have in the estate of the other upon his or her death have, however, long been recognized as being conducive to marital tranquility and thus in harmony with public policy. See Del Vecchio v. Del Vecchio, Fla.1962, 143 So.2d 17, in which we prescribed the rules by which the validity of such antenuptial or postnuptial property settlement agreements should be tested. Such an agreement has been upheld after the death of the spouse even though it contained also a provision settling their property rights in the event of divorce or separation--the court concluding that it could not be said this provision 'facilitated or tended to induce a separation or divorce.' See In re Muxlow's Estate, 1962, 367 Mich. 133, 116 N.W.2d 43.

In this view of an antenuptial agreement that settles the right of the parties in the event of divorce as well as upon death, it is not inconceivable that a dissatisfied wife--secure in the knowledge that the provisions for alimony contained in the antenuptial agreement could not be enforced against her, but that she would be bound by the provisions limiting or waiving her property rights in the estate of her husband--might provoke her husband into divorcing her in order to collect a large alimony check every month, or a lump-sum award (since, in this State, a wife is entitled to alimony, if needed, even though the divorce is awarded to the husband) rather than take her chances on being remembered generously in her husband's will. In this situation, a valid antenuptial agreement limiting property rights upon death would have the same meretricious effect, insofar as the public policy in question is concerned, as would an antenuptial divorce provision in the circumstances hypothesized in Crouch v. Crouch, supra, 385 S.W.2d 288.

There can be no doubt that the institution of marriage is the foundation of the familial and social structure of our Nation and, as such, continues to be of vital interest to the State; but we cannot blind ourselves to the fact that the concept of the 'sanctity' of a marriage--as being practically indissoluble, once entered into--held by our ancestors only a few generations ago, has been greatly eroded in the last several decades. This court can take judicial notice of the fact that the ratio of marriages to divorces has reached a disturbing rate in many states; and that a new concept of divorce--in which there is no 'guilty' party--is being advocated by many groups and has been adopted by the State of California in a recent revision of its divorce laws providing for dissolution of a marriage upon pleading and proof of 'irreconcilable differences' between the parties, without assessing the fault for the failure of the marriage against either party.

With divorce such a commonplace fact of life, it is fair to assume that many prospective marriage partners whose property and familial situation is such as to generate a valid antenuptial agreement settling their property rights upon the death of either, might want to consider and discuss also--and agree upon, if possible--the disposition of their property and the alimony rights of the wife in the event their marriage, despite their best efforts, should fail. In Allen v. Allen, supra, 150 So. at page 238, this court said that the agreements relating to divorce that are held to be illegal as contrary to public policy are those 'withdrawing opposition to the divorce or not to contest it or to conceal the true cause thereof by alleging another' and that they 'have no reference to bona fide agreements relating to alimony or the adjustment of property rights between husband and wife, though in contemplation of divorce, if they are not directly conducive to the procurement of it.'

We know of no community or society in which the public policy that condemned a husband and wife to a lifetime of misery as an alternative to the opprobrium of divorce still exists. And a tendency to recognize this change in public policy and to...