concurring and dissenting:
I concur in the result reached by the majority as I believe the agreement entered by the parties clearly established an intent to provide support for the children and alimony for the wife until the youngest child was emancipated and/or completed college training. It is to be presumed that the parties entered into the agreement as equals, fully represented by counsel and with full knowledge of both statutory and common law. Despite provisions in the Divorce Code, 23 Pa.C.S. § 3706, Bar to alimony, which prohibits an award of alimony where the petitioner cohabits with a person of the opposite sex (here, remarriage) and 23 Pa.C.S. § 3701, Alimony, subsection (e), Modification and termination, which states in pertinent part: “Remarriage of the party receiving alimony shall terminate the award of alimony[,]” the agreement is binding and is not subject to these sections since the agreement does not constitute an award of alimony. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), alloc. denied, 517 Pa. 631, 539 A.2d 811 (1987), held that the wife’s remarriage did not effect an award of alimony pendente lite although 23 P.S. § 507 (now section 3706) precluded any award of alimony. In D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990), alloc. denied, 525 Pa. 646, 581 A.2d 572 (1990), monthly payments toward alimony were not terminated upon remarriage of the wife as they were construed to be part of property distribution. More to the point is Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990), which held a separation agreement, which made no provision for cessation of alimony payments upon cohabitation with the opposite sex by the recipient spouse, was not controlled by section 507 (now section 3706). This Court held:
Clearly, the rights and obligations of the parties in many areas affected by the dissolution of a marriage can be determined and altered by private agreement despite the existence of specific statutory provisions which would operate in the absence of such agreements. For instance, while this Court has found that the Divorce Code does not *605authorize the award of alimony to extend past the payor’s death, the parties may voluntarily agree otherwise. Chaney v. Chaney, 343 Pa.Super. 77, 86-87, 493 A.2d 1382, 1387 (1985). See also Myers v. Myers, 375 Pa.Super. 351, 544 A.2d 506, 508 (1988) (parties can contract to have support obligation of payor spouse survive him and bind the estate). Likewise, separation agreements which make no provision for the cessation of alimony payments upon cohabitation with the opposite sex by the recipient spouse cannot be avoided by the payor spouse despite the fact that the Divorce Code would have “awards of alimony” terminate upon such an occurrence. 23 Pa.C.S.A. § 507 (Purdon Supp.1990). Moreover, although the Divorce Code clearly manifests a policy against “double support” in § 507, that policy will not overcome the validity of an otherwise unimpeachable separation agreement. See VanKirk v. VanKirk, 336 Pa.Super. 502, 504-06, 485 A.2d 1194, 1196 (1984); Litwack v. Litwack, 289 Pa.Super. 405, 409-11, 433 A.2d 514, 516 (1981).
These cases reflect the recognition that generally parties have great latitude in directing the resolution of disputes upon the dissolution of marriage. Assuming that there is no evidence of fraud or overreaching, courts are extremely tolerant of a variety of separation and other agreements affecting marriage and divorce.
Id., 400 Pa.Superior Ct. at 1338, 582 A.2d at 1338.
The majority is correct in holding that the separation agreement in this case, pursuant to Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), was not merged with the divorce decree and stands as a contract which is enforceable independent of and unaffected by the Divorce Code. As such it may not be altered or modified except by agreement of the parties.
Having said the above, it becomes evident that the majority went beyond what was necessary or permissible in deciding that 23 Pa.C.S. § 3105, Effect of agreement between *606parties, was applicable. That section, in pertinent part, provides:
(c) Certain provisions not subject to modification.— In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.
In this case, as in DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990), the Court relies on section 3105(c) when it is not relevant because the unmerged agreement does not rely upon the Divorce Code for its efficacy, but on the law of contract. Even if the contract was merged into the decree, section 3105(c) would not apply because of the statutory prohibition contained in the Divorce Code, which rules out the majority’s application of statutory construction in determining the retroactive nature of an amendment. The Statutory Construction Act, 1 Pa.C.S. § 1921, Legislative intent controls, provides:
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
Id. At the time the agreement went into effect (1987), section 3105(c) (added February 12, 1988 as section 401.1) was not in effect. Pursuant to 23 P.S. § 103, Construction, subsequent amendments to the Divorce Code could not alter the agreement of the parties entered into before the amendment. This is hornbook law and simply affirms the sanctity of contracts protected by our Federal and State Constitutions. My dissent filed in DeMatteis, supra, is precisely on point and is set forth as follows:
Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), en banc, as acknowledged by the majority, required that *607this agreement be enforced as a contract but it then goes on to conclude, unnecessarily, for the purpose of the result, that section 401.1 may be retroactively applied to an agreement entered into prior to the amendments of 1988. The agreement provided that it could not be unilaterally modified and since it retained its identity as a contract, it could not be modified as a court Order by the court. The discussion by the majority concerning the retroactivity of section 401.1(c) is, therefore, irrelevant. In addition, it is erroneous since an amendment to the Divorce Code which follows the effective date of an agreement may not apply to that agreement. Contracts have been held inviolate by the federal and state constitutions and may not be altered by legislative provisions which would, in effect, deprive the parties of property rights without due process of law. In Nessa v. Nessa, [399] Pa.Super. [59,] 581 A.2d 674 (1990), we applied Sonder, supra, to hold that a contract such as this was not to be subject to alteration by Order of court. There, we also held:
[T]his agreement is not affected by amendment to the Divorce Code § 401.1(c), added in 1988, ... as the agreement predated the amendment. The Divorce Code at 23 P.S. § 103 Construction, provides:
This act shall not affect any marital agreement executed prior to the divorce agreement executed prior to the effective date of this act or any amendment or modification thereto.
Id., 399 Pa.Superior Ct. at 65, n. 2, 581 A.2d at 676, n. 2. While the result of the majority is correct, the discussion regarding section 401.1(c) is in error, unnecessary for the result, and in direct conflict with Sonder. I, therefore, dissent to the discussion and analysis concerning the retroactive effect of section 401.1(c).
Id., 399 Pa.Superior Ct. at 437, 582 A.2d at 674 (emphasis added).
If the clear unambiguous terms of 23 P.S. § 103 were not sufficient, 1 Pa.C.S. § 1926, Presumption against retroac*608tive effect, would be controlling. “No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” Id. The majority’s adoption of the rationale of the majority in DeMatteis on the retroactivity issue, in the face of the clear prohibition against retroactivity provided by section 103 of the Divorce Code, the clear legislative mandate requiring construction against retroactivity by section 1921 of the Statutory Construction Act because no ambiguity exists in section 103, and the presumption against retroactivity contained in section 1926 of the Statutory Construction Act, clearly establishes the error of that holding.
In summation, the majority in applying its section 3501(c) rationale is internally inconsistent because, pursuant to Sonder, the Divorce Code does not apply to this agreement and is in error because it may not apply section 3501(c) retroactively as the Divorce Code prohibits such an application. Because it is likely there are hundreds of such preamendment agreements in effect, our correct resolution of this issue at this time is essential to provide the proper interpretation of those agreements for use by the bar, trial bench and appellate courts. I, therefore, dissent to the discussion or application of section 3501(c) to this case.