dissenting.
I respectfully disagree with the conclusions reached by the majority opinion and therefore, dissent.
A critical basis of the majority opinion is that the document in question is a “separation agreement.” In fact, however, the document is captioned “Agreement and Deed of Separation.” (Emphasis added.) In paragraph 21 of this agreement, it states:
Pursuant to the provision of G.S. 50-20(d), the parties have agreed that the above division constitutes a distribution of *519marital property and such distribution shall be deemed to be equitable as between them. That except for the distribution in the manner provided for in this agreement, each of the parties hereto does hereby irrevocably and forever waive any and all rights whatsoever to a distribution of the property owned by the said parties, whether pursuant to Section 20 of Chapter 50 of the North Carolina General Statutes, or its equivalent, in the State of North Carolina or in any other state.
The paragraph in contention in the case sub judice deals with the transfer of the wife’s ownership interest in the marital residence, thereby clearly being property subject to the equitable distribution laws of this state. N.C.G.S. § 50-20(d) states:
Before, during or after marriage the parties may by written agreement, duly executed and acknowledged in accordance with the provisions of G.S. 52-10 and 52-10.1, or by a written agreement valid in the jurisdiction where executed, provide for distribution of the marital property in a manner deemed by the parties to be equitable and the agreement shall be binding on the parties.
The agreement in question was (1) in writing; (2) duly executed and acknowledged in accordance with the provision of N.C.G.S. § 52-10 by both parties; and (3) provided for distribution of the marital property in a manner deemed by the parties to be equitable.
I consider this agreement to meet all the requirements of a N.C.G.S. § 50-20(d) agreement and, therefore, subject to rules applicable to this specific type of agreement.
If, as contended in this dissent, this is a N.C.G.S. § 50-20(d) agreement, then the isolated act or acts of sexual intercourse between the parties does not automatically void the provision requiring the wife to transfer her interest in the marital home upon “living separate and apart for one year.”
As stated in Love v. Mewborn, 79 N.C. App. 465, 339 S.E. 2d 487, disc. rev. denied, 317 N.C. 704, 347 S.E. 2d 43 (1986): “property settlements may be executed before, during or after marriage and are not necessarily terminated by reconciliation.” 79 N.C. App. at 466, 339 S.E. 2d at 488. In Love, a single act of sexual *520relations during a twenty-four hour reconciliation period was held not to void alimony payments agreed to in a “separation agreement and property settlement.” In addition, this Court in Buffington v. Buffington, 69 N.C. App. 483, 317 S.E. 2d 97 (1984), has stated “that the public policy of our state, as expressed by G.S. § 50-20(d), permits spouses to execute a property settlement at any time, regardless of whether they separate immediately thereafter or not.” 69 N.C. App. at 488, 317 S.E. 2d at 100. In Buffing-ton, the defendant wife contended that the separation agreement executed by her was void solely on the grounds that she continued to live with the plaintiff for eighteen days after the agreement was signed. Our Court held that she could not avoid the separation agreement under those conditions.
Finally, the majority’s conclusion that the resumption of sexual relations, as a matter of law, caused the parties to “no longer be living separate and apart” is, in my opinion, incorrect. As previously pointed out, resumption of sexual relations does not, as a matter of law, void a N.C.G.S. § 50-20(d) agreement. Therefore, to conclude that the parties “no longer live separate and apart” because of the resumption of sexual relations, is to give the phrase a meaning beyond the context of this agreement and to affix to it a meaning reserved for situations other than a property settlement under N.C.G.S. § 50-20(d). There is no basis in our statutes or case law to conclude that the incorporation of the phrase “live separate and apart for one year” into a N.C.G.S. § 50-20(d) agreement means that sexual relations will result in the conclusion, as a matter of law, that the parties no longer live separate and apart. The intent of the parties as to the application of this phrase in their agreement is instead a question to be decided by the trier of fact. Summary judgment was therefore, in my opinion, improvidently granted.