The opinion
Barnhill, J.,
concurring: Trial marriage is unknown to the law of North Carolina. Yet, in my opinion, if we approve the trial in the court below, we lend our stamp of approval to that type of marriage contract.
Of course, theologically, marriage is a sacrament, but under the law it is a contract. And here we are concerned with it only as a contract sanctioned by law and with the conditions under which the status thereby created may be dissolved. But even when considered as a contract sanctioned by law, marriage is the keystone of our civilization without which organized society could not long exist. Its maintenance and protection are fundamentals of our public policy. It is so basic that the contract of marriage is set apart and treated as one entirely different from other contracts. It is to continue in force and effect from its inception to its dissolution by death or for a cause and in the manner prescribed by law.
The law as it now exists in this State does not sanction any modification or limitation upon the obligations it imposes by a prenuptial agreement except in respect to the property of the contracting parties.
*127 But bere we have a trial in which the plaintiff is permitted to meet the defense of abandonment by proof of a prenuptial agreement that the obligations imposed by the marriage should not be binding on either party._
Plaintiff testified that he left the defendant; that he did not want to live with her; that he wanted to marry another woman; that defendant repeatedly asked him to live with her, but that he refused; that he knew of nothing wrong that she had done; and that he had no complaint about her conduct. Thus, his own testimony entitled defendant to a peremptory instruction on the fourth issue.
But no. There was a prenuptial agreement that the marriage should be nothing more than a farce and plaintiff may now justify what has heretofore been considered an abandonment by proving a prenuptial agreement to separate after marriage. Thus the prenuptial agreement modifies and takes precedence over the solemn contract of marriage. Certainly this was the theory of the trial in the court below.
In my opinion, proof of the prenuptial agreement to separate after marriage and abandon the obligations imposed by the marriage is so diametrically opposed to the fundamental policy of the State it became and was the duty of the court to exclude any and all evidence in respect thereto even without objection by defendant. Certainly it committed error when it submitted this testimony to the jury in its charge as evidence properly to be considered on the fourth issue.
Any person having knowledge of the facts disclosed by this record and the record on the former appeal, McLean v. McLean, 233 N.C. 139 , would experience a sense of sincere sympathy for the second woman in the triangle. She is innocent of any wrongful conduct and is the victim of plaintiff’s machinations.
He married defendant and, according to her testimony, maintained the status of marriage with her over a period of years. He then instituted an action for divorce against her (she being a resident of the State of Illinois) in Guilford County. But when she appeared to defend the action, he submitted to a voluntary nonsuit. He then, by practicing a fraud on the court (McLean v. McLean, supra), obtained a decree of divorce in Alamance County. Thereafter he married the second woman and is the father of her child. But the question here involved is so vital and so directly affects the public interest and fundamental public policy of the State that, in comparison, the rights or interest of the individual fade into insignificance. I vote for a new trial.