I would grant plaintiff’s motion for summary judgment for a conversion divorce under subdivision (6) of section 170 of the Domestic Relations Law, based upon the separation agreement executed more than a year earlier.
Under Christian v Christian (42 NY2d 63) the separation agreement is complied with for the purpose of conversion divorce if the parties have in fact lived separate and apart pursuant thereto. The Court of Appeals said:
"It was the legislative intent to provide these nonfault *430grounds for divorce where marriages are dead, based on a recognition that it was morally and socially desirable, to society and to the parties to such a union, to enable them ' "to extricate themselves from a perpetual state of marital limbo” ’ (Gleason v Gleason, 26 NY2d 28, 35, 37. The 'vital and operative’ fact, in subdivision (6) divorce cases, is the actual living apart of the parties—pursuant to the separation agreement (cf. id., p 37). Put a bit differently, the function of the document is 'merely to authenticate the fact of separation’ (cf. id., p 37).” (Christian v Christian, supra, p 69.)
"Therefore, if the separation agreement conforms to the statute but is otherwise found to be void and unenforceable insofar as its substantial provisions are concerned, generally it may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” (supra, p 70).
In the Christian case (supra, p 71), although there were questions as to the enforceability and validity of various parts of the separation agreement as to which the court sent the case back for further proceedings, the Court of Appeals sustained the Appellate Division’s grant of a conversion divorce.
Here there is no question that the parties have lived separate and apart for more than a year pursuant to the separation agreement. They are thus entitled to a divorce.
Bloom, Ross and Yesawich, JJ., concur with Fein, J. P.; Silverman, J., dissents in part in an opinion.
Order, Supreme Court, New York County, entered on August 31, 1979, affirmed in all respects, without costs and without disbursements.