We dissent and would affirm the determination of Special Term dismissing the complaint.
The action seeks a declaratory judgment declaring that a separation agreement and a decree of divorce be declared null and void. It appears without contradiction that for some time prior to the marriage the parties had cohabited and a child was born of their union. Defendant acknowledged paternity and provided support for the child which was both ample and satisfactory to plaintiff. Defendant consistently refused to consider marriage upon the ground that the absence of any appropriate regard between the parties for each other would preclude a satisfactory relationship. However, he finally yielded to importunities to legitimatize their offspring by going through a ceremony. It is quite clear that defendant consented only upon condition the marriage so contracted would be terminated immediately by divorce and that plaintiff would neither acquire nor seek any property rights or support. Continued support of the child was not affected. All of these terms were embodied in the separation agreement and explained in a letter which plaintiff received and understood. She signed the separation agreement and authorized an appearance in-the divorce proceedings.
The allegation of the complaint is that plaintiff executed the agreement under duress. This, of course, is nonsense. It is undeniable that the marriage was at her solicitation and that she consented to the terms because that was the only way in which she could bring this about. Clearly, defendant was not *257desirous of having her execute the agreement and would have been more satisfied had she refused and the marriage had been forgone. As the alleged duress is the refusal otherwise to marry—which the defendant could legally refuse to do —there is no duress (Harges v. Harges, 46 Misc 2d 994). Under these facts, which are not in contention, duress is not a factor.
There is one other contention which has been introduced into the case which is of no significance. Defendant consulted a lawyer who also spoke to plaintiff and who drew the separation agreement. He advised her to consult an attorney of her choice, which she did not do. While there may possibly be some question of taste as to the same lawyer representing the defendant in this action, it can have no possible bearing on the outcome.
The only real issue in the action is one of law—whether the agreement is void as a matter of law. There is very little relevant authority in this State. Actions involving fraudulent or overreaching separation agreements between spouses already married and living together (cf. Pomerance v. Pomerance, 301 N. Y. 254) have no bearing. Nor do cases involving the claimed immutability of support provisions in a separation agreement after a change in conditions (cf. McMains v. McMains, 15 N Y 2d 283).
As far as has been ascertained, the precise situation has not been presented to an appellate court, though there are nisi prius decisions. In all of those cases the following operative facts appeared: the birth of an illegitimate child, an agreement by the father to go through a marriage ceremony to legitimatize the child; no cohabitation thereafter between the parties. The procedure adopted by the husband in all of these cases when the wife insisted on marital rights was to sue for annulment. In this State annulment was granted (Amsden v. Amsden, 202 Misc. 391).* The same result was reached in Ohio (Conley v. Conley, 28 Ohio op. 289) and in Pennsylvania (Osgood v. Moore, 38 Pa. D. & C. 263; but, see, Wagner v. Wagner, 59 Pa. D. & C. 90). In Florida a slightly different state of facts resulted in a like result (Stone v. Stone, 159 Fla. 624).' There the father of the illegitimate child was a minor and there was an impediment to his marrying. His elder brother went through the ceremony in his stead. Annulment was granted.
We fail to see any distinction between the parties’ providing for án otherwise legal dissolution of the marriage and the grant of the same relief by way of annulment. The same underlying principle is common—that the ceremony was never intended *258to create a relationship. Consequently, it should not engender those protective statutory provisions which our policy has caused to be enacted to govern the relationship validly created. It should be noted that the provisions of the General Obligations Law (§ 5-311) do not create a marital status—they merely limit its disruption. As in all other instances of contractual .relationship, an intent to effectuate the relationship is essential to its creation. While secret reservations cannot prevail over expressed intent, here, as in the similar precedents, the actual intent is not in issue.
The order of Special Term should be affirmed.
Eager and Tilzer, JJ., concur with McGivern, J.; Stevens, P. J., and Steuer, J., dissent in opinion by Steuer, J.
Order entered on December 16, 1968, reversed, on the law, without costs or disbursements; the motion to dismiss the complaint denied, without costs.
In Delflno v. Delfino (35 N. Y. S. 2d 693), annulment was denied where there was cohabitation after the ceremony.