dissenting.
I respectfully dissent. This is a case of first impression with this Court. It was decided by the trial court on motion for summary judgment. The movant, Phillip Hagler, had the burden to satisfy the court that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Moore v. Crumpton, 306 N.C. 618, 295 S.E. 2d 436 (1982). Therefore, plaintiff had the burden to prove that there was no marital property subject to equitable distribution. He has failed to do so. The record is devoid of such evidence. A genuine issue of material fact existed as to whether there was marital property subject to equi*296table distribution. At trial on the merits, defendant would have the burden of proof on this issue.
The majority finds that the separation agreement bars defendant’s right to equitable distribution. I disagree. The waiver of rights is not favored in the law. A waiver is the intentional and voluntary surrender of a known right or benefit. Adder v. Holman & Moody, Inc., 288 N.C. 484, 219 S.E. 2d 190 (1975). While the equitable distribution act was in effect at the time of execution of the separation agreement and it is presumed that the defendant was aware of it, nowhere in the agreement is there any reference to marital property or to equitable distribution. The separation agreement is by substance and form in the manner of such agreements drafted prior to the adoption of the equitable distribution statute. Thus the agreement fails to support a conclusion that defendant intended to relinquish her right to equitable distribution.
I agree that parties should be encouraged to settle marital differences by mutual agreement. But before a waiver of equitable distribution rights is found from an agreement, the intent of the parties should be clear. Such intent is not manifested here. The majority relies upon paragraphs 3 and 4 of the agreement. In paragraph 4, the wife relinquishes “any and all other rights arising out of the marriage relationship in and to any and all property now owned by the ‘HUSBAND’ . . . .” Paragraph 3 is the converse, the husband relinquishing all such rights in the wife’s property.
The majority states that the phrase “all other rights arising out of the marriage relationship” includes defendant’s right to equitable distribution. I find this to be unfounded, as demonstrated below, but even if correct, the paragraph would only relinquish defendant’s right to equitable distribution in and to property then owned by the husband, not to marital property. The majority fails to recognize the modifying phrase “in and to any and all property now owned by the ‘HUSBAND,’ ” which immediately follows the phrase relied upon by the majority. By selectively quoting from the agreement, the majority seeks to alter the legal effect of the agreement.
In stating that “all other rights arising out of the marriage relationship” includes defendant’s right to equitable distribution, the majority overlooks N.C.G.S. § 50-20(k):
*297The rights of the parties to an equitable distribution of marital property are a species of common ownership, the rights of the respective parties vesting at the time of the filing of the divorce action.
According to this statute, the right to equitable distribution does not arise out of the marital relationship but arises from the filing of the divorce action. It is a right attendant to divorce, not marriage. Sharp, Equitable Distribution of Property in North Carolina: A Preliminary Analysis, 61 N.C. L. Rev. 247 (1983). While the marriage relationship exists, there is no right to equitable distribution. This linchpin to the majority’s opinion fails.
The right to equitable distribution of marital property is a species of common ownership. N.C.G.S. § 50-20(k) (1984). A new concept of ownership is created by the statute, unknown at common law. The purpose of the statute is to equitably distribute “marital” property, not “separate” property, upon dissolution of the marriage. Mims v. Mims, 305 N.C. 41, 286 S.E. 2d 779 (1982). This being a new right, any alleged waiver should be scrutinized carefully. As defendant did not have a right to equitable distribution at the time the separation agreement was entered into, it is unreasonable to assume, as the majority does, that defendant intended to relinquish and waive a right that she did not then have and might not ever have. She signed the separation agreement on 8 July 1983, and the action for divorce was not filed until 21 January 1985. During this eighteen-month period either party could have died, the parties could have reconciled, or the divorce action might never have been filed for various reasons. At the time defendant signed the separation agreement, she could not be positive that she would ever have a right to equitable distribution. Knowledge of the existence of the right is essential to the waiver of the right. Jones v. Insurance Co., 254 N.C. 407, 119 S.E. 2d 215 (1961); Swartzberg v. Insurance Co., 252 N.C. 150, 113 S.E. 2d 270 (1960); Brady v. Benefit Asso., 205 N.C. 5, 169 S.E. 823 (1933). There is no evidence in this record to show that defendant thought that she had a right to equitable distribution when she signed the separation agreement, or that she intended to waive her right to equitable distribution at that time, or that the right to equitable distribution existed for her benefit at that time. The language of the separation agreement does not support the majority’s conclusion that it encompasses a complete settlement of *298the parties’ marital rights, as well as defendant’s right to equitable distribution.
This is not to say that a party may not waive her right to equitable distribution by the execution of a valid separation agreement. But in order to do so, the clear intention of the party to waive a future right must be manifest. This could be done, for example, by a statement: “I hereby waive and relinquish all rights that I now have, or which may hereafter become vested in me, to equitable distribution pursuant to N.C.G.S. §§ 50-20 and -21.” There being no such clear manifestation of intent in this case, I vote to affirm the decision of the Court of Appeals.
I am authorized to state that Justice Mitchell joins in this dissenting opinion.