Reiling v. Reiling

• Decision Date: 11 September 1970
• Citation: 256 Or. 448,474 P.2d 327
• Parties: M. Lela REILING, Petitioner, v. Edward A. REILING, Respondent.
• Court: Oregon Supreme Court

Page 327

474 P.2d 327

256 Or. 448

M. Lela REILING, Petitioner, v. Edward A. REILING, Respondent.

Supreme Court of Oregon.

Argued and Submitted June 3, 1970.

Decided Sept. 11, 1970.

John A. Bryan, Salem, argued the cause for petitioner. With him on the brief were DeArmond, Sherman & Barber, Salem.

Ridgway K. Foley, Jr., and John L. Schwabe, Portland, argued the cause for respondent. With them on the briefs were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before O'CONNELL, C.J., and McALLISTER, SLOAN, DENECKE, HOLMAN and HOWELL, JJ.

HOLMAN, Justice.

Wife sued husband for divorce. The trial court granted the wife a divorce and awarded alimony. It held an antenuptial agreement invalid which provided the wife would receive no alimony upon divorce. Upon appeal, the Court of Appeals set aside the allowance of alimony and held the agreement valid. Or.App., 90 Adv.Sh. 51, 463 P.2d 591 (1970). This court granted a writ of review.

The sole issue is whether that part of an antenuptial agreement is invalid, because of public policy, which provides that the wife should receive no alimony in case the parties were subsequently divorced. There was no evidence or claim of fraud or unfair advantage surrounding the execution of the agreement. The case is one of first impression in this state.

Authority is almost unanimously to the effect that antenuptial agreements to forego alimony are void because they are contrary to public policy. ¹ The rationale is twolold. Some cases say that such agreements encourage divorce because the husband knows that he will not have to support his wife if a divorce ensues, and, therefore, he will not treat her with the consideration with which he otherwise would have treated her. This argument is refuted by some critics who say that, on the other hand, such an agreement is an inducement to the wife to bear with her husband's fobiles because she knows she will receive no support in the event of divorce. Such critics contend there is no demonstrable evidence that such an agreement promotes divorce. Other cases hold that the state has a paramount interest in the adequate support of its citizens, and, therefore, the husband's duty of support, either before or after divorce, should not be left to private control. This argument has more and more cogency as government increasingly considers itself responsible for the adequate support of its citizens.

A good summary of the permissible scope of antenuptial agreements under the present case law is found in Clark, Law of Domestic Relations 28--29 (1968):

'So long as it relates solely to the disposition of the property of the spouses on their death, the antenuptial agreement is clearly valid. The problems arise when the agreement purports to govern the duties of the parties on divorce, or when it imposes obligations other than those related to property. It is generally held, for example, that an antenuptial agreement is invalid which provides that the wife accepts a stated sum in full settlement not only of her property rights, but also of her claims for support from her husband. Similar decisions exist respecting agreements made after marriage but before separation, the courts holding that the parties cannot contract with respect to support or alimony unless they have actually separated or at least their separation is imminent. The basis for such decisions is not well articulated in the cases. Some courts condemn this sort of agreement as conducive to divorce, but this is certainly not demonstrable as a general proposition. A particular agreement may give one of the parties a financial motive for seeking divorce, but it will often provide the other party with an equally strong motive for resisting divorce. The real reason for invalidating such antenuptial contracts seems to be that although the provisions may be fair at the time they are made, they may not be later when the separation or divorce occurs. The wife may thus be left with entirely inadequate support, or the husband with an excessively heavy liability to his wife, which in some cases might make it difficult for him to support his children. Thus, the difficulty of forecasting the parties' circumstances so far in the future has led the courts to disallow antenuptial contracts which attempt to do this with respect to support, which is regarded as an essential obligation of the marital relation, one having greater significance than property rights. Another way of putting the same point is to say that certain duties incident to marriage are of such public importance that they cannot be left to the parties' control * * *.' (footnotes omitted.)

We are not so sure as some of the critics that such agreements do not tend to invite inconsiderateness and marital conflict. See Cohn v. Cohn, note 1, Supra. In addition, the state has a paramount interest in the adequate support of the wife both before and after divorce or separation.

Despite the advance of women's rights and their increasing participation as wage earners, we believe there is much to be said for a public policy that protects the right of a wife to receive support upon separation or divorce. There is still a vast number of women with no skills who are only marginally employable or who properly devote...