The opinion
CARTER, J.
I concur in the judgment of reversal. It is neither illegal, immoral nor against public policy for a husband and wife to enter into a property settlement agreement wherein they agree upon a division of their property and waive all claims, past, present and future, against each other, including alimony, temporary and permanent, and attorney’s fees and costs. Such agreements are sanctioned by both statutory provisions (Civ. Code, §§ 158, 159), and court decisions (Hill v. Hill, 23 Cal.2d 82 [ 142 P.2d 417 ]; Hensley v. Hensley, 179 Cal. 284 [ 183 P. 445 ]) in this state. When such an agreement has been executed, and either party applies to a court for relief contrary to its provisions, it is the duty of the court, upon demand of the other party, to determine its validity. If the agreement is found to be valid, the parties should be required to comply with its provisions. On an application by a wife for temporary alimony, attorney’s fees and costs in an action for divorce or separate maintenance, if the husband submits such an agreement to the court and claims that his obligations to his wife are specified therein, it is the duty of the court to make at least a preliminary determination as to the validity of such agreement in passing on such application. If it should appear to the court that such agreement is valid, it should deny any relief to the wife contrary to its provisions. But if a prima facie showing of invalidity is made, the court may reserve its ruling until the case is tried on the merits and may make an order for relief to the wife pendente lite notwithstanding the agreement. In other words, *526 the agreement should be considered by the court in passing on such an application. This the court did not do in this case, even though in a prior action it had held the agreement to be valid. Regardless of whether its judgment in the prior action had become final at the time of the hearing on the wife’s application, it was the plain duty of the court to consider the agreement as binding upon the parties and deny the wife any relief contrary to its provisions. Unless this is done, an agreement providing for the payment by the husband of temporary alimony, attorney’s fees and costs would be just a worthless scrap of paper. Furthermore, such an agreement may have been partially or fully executed and the wife may have received from the husband valuable properties and large sums of money as consideration for its execution. Certainly, these facts should be considered by the trial court in passing on such application.
In the case at bar, the agreement having been determined to be valid in a prior action, the court had no power to make an award contrary to its provisions.
Schauer, J., concurred.