(concurring specially): I concur in the result but with regard to the legal status of the antenuptial contract in question I base my conclusion that it is against public policy, and therefore unenforceable, solely upon the proposition that the separation *695provisions found therein are of such nature as to facilitate and encourage a dissolution of the marriage relation or at least a separation of the parties.
The doctrine that separation agreements which are not conducive to a continuation of the marriage contemplated by the contract are contrary to public policy is supported by the great weight of authority (6 R. C. L. 771, § 176; 17 C. J. S. 618, § 235 [b]; 17 Am. Jur. 546 §726; Restatement, Contracts, §584, Comment 2) and this court is numbered among the authorities which are committed to it. (Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1; King v. Mollohan 61 Kan. 683, 688, 60 Pac. 731). That this is so can be verified by reference to our later decisions where Neddo v. Neddo, supra, is cited and the principle announced therein is recognized as prevailing law in this jurisdiction. (See Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9; In re Estate of Cantrell, 154 Kan. 546, 551, 552, 119 P. 2d 483 and Relihan v. Relihan, 157 Kan. 249, 251, 139 P. 2d 385).
While this court has not had occasion to make decision on the rights of parties, arising because of separation, under the provisions of a contract such as is here involved, it is my view we have inferentially recognized a similar doctrine prevails with respect to ante-nuptial agreements and that where their provisions either invite, facilitate or encourage, separation they are also unenforceable as contrary to public policy (see Dunsworth v. Dunsworth, supra, p. 352, and In re Estate of Cantrell, supra, pp. 551, 552). Of a certainty the doctrine has been recognized and applied in many other jurisdictions (see 6 Williston on Contracts, Rev. ed., 4930, §1742; 17 C. J. S. 619, § 2355; Restatement, Contracts, 584, Illustration 2; 17 Am. Jur. 156, § 15; Anno. 70 A. L. R. 826, and cases there cited).
I realize there may be a situation, such as existed in Dunsworth v. Dunsworth, supra, where the fact an antenuptial contract contains a provision fixing the status of property in the event of a separation will not invalidate the entire agreement; but it is my view the instrument under consideration is not subject to the construction given the one involved in the case just referred to, or to any construction that would permit separability of the illegal separation provision from its other provisions.
Neither am I unmindful of appellant’s contention the particular provision of the contract in question was not conducive to a separation, but that, on the contrary, it was greatly to the financial ad*696vantage of the wife that there be none, or his further contention the provisions pertaining to separation for any cause or for any reason granted her an option which she was not required to exercise. I am inclined to agree with appellant on both points. Even so, his argument that the contract was valid is not convincing. It overlooks the vital factor that he, too, was a party to an agreement containing provisions which, conceding his position with respect to his wife, facilitated and encouraged a separation so far as he was concerned if for any reason he became dissatisfied with his marital status. That in my opinion is the inherent vice which brings the contract within the scope of the doctrine to which I have heretofore referred.