dissenting: Under the facts of this case, the court is permitting the former wife to enjoy the benefits of a marital relationship without enforcing the burden imposed upon her by the property settlement agreement, i.e., sale of the house upon her remarriage.
The public policy of this state favors marriage. Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311 (1900). When that policy is extended to the facts before us, the wife has, in essence, “remarried.” She lives in a marital relationship with a man who helps her with financial support.
In Fleming v. Fleming, 221 Kan. 290, 293, 559 P.2d 329 (1977), the former wife was awarded alimony payments under the divorce decree, those payments being contingent upon her death or remarriage. This court ruled the former husband was required *358to continue alimony payments to his former wife after she began living with another man in a marital relationship. The former husband’s attempt to establish the existence of a common-law marriage failed. The court recognized it to be against public policy for a woman to receive support from both a former husband and a present husband, but stated, “[H]ere we are not dealing with a former and a present husband. We are dealing with a former husband and a present boyfriend with no obligation to support.”
On the facts in this case, the former wife’s present boyfriend has accepted an obligation to help support her — he pays $200 a month in rent, pays one-half of the utilities, and helps buy groceries. While the former husband is not obligated to pay maintenance in this case, he is obligated to pay one-half of the maintenance expenses on the house for structural repairs. In that respect, the former husband is obligated to help support his former wife and, therefore, she is receiving support from a former husband and a present paramour (“present husband”), which is contrary to public policy. See Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967).
In Weseman v. Weseman, 51 Or. App. 675, 679, 626 P.2d 942, rev. denied 291 Or. 118 (1981), if the former wife remarried, she was to pay her former husband $10,000, his share of the equity in their house. After the wife began living with her paramour, who shared household expenses, the former husband sued to recover $10,000 because she had “remarried.” The Oregon court found the former wife’s cohabitation was an artifice to avoid her burden under the property settlement agreement:
“She thus enjoys, to a substantial degree, the benefits of a legal marriage, while attempting to avoid her $10,000 legal liability in such a situation. A court of equity should look through the form of a transaction to its substance and enforce the contract sought to be avoided. [Citation omitted.] We do so here.
“The facts of this case amply demonstrate, from a practical standpoint, why a dissolution decree should not condition payment of a lien on remarriage. A former spouse may well choose, for his or her next living arrangement, a situation which resembles marriage but does not conform to the legal requirements .... To allow this defendant and her new domestic associate [citation omitted], by subterfuge, to enjoy the benefits of the former family home while evading the intended financial consequences is grossly inequitable.”
In my opinion, upon finding the wife has “remarried” the court would not be modifying the property settlement to include a term or an intent wholly unexpressed when the contract was *359executed. Contracts to settle property rights, whether made before or after marriage, are to be liberally construed to carry out the intention of the parties. In re Estate of Gustason, 173 Kan. 619, 623, 250 Pac. 837 (1952). Here, a liberal construction of the term “remarriage” would include the situation before us — a former wife enjoying the benefits of a marital relationship which includes financial support from her paramour.
It is respectfully submitted the decisions of the district court and the Court of Appeals should be reversed and the case remanded for sale of the house.
Miller, J., joins the foregoing dissenting opinion.