dissenting.
I respectfully dissent.
The majority opinion calls the agreement a “separation/property settlement agreement” and concludes that the Tuccis’ post *440execution marital reconciliation did not rescind their separation agreement. I disagree and would affirm.
The agreement here is clearly a separation agreement. The document is titled “Separation Agreement.” From the terms of the agreement and the circumstances of its execution, it is clear that Mr. and Mrs. Tucci intended to create a separation agreement. Paragraph I of the agreement itself states: “That the parties shall continue to live separate and apart, each, being free from interference, authority or control by the other as full as if he or she were unmarried. . . .” [Emphasis added.] The clerk of court found as a fact that the parties both separated and executed the separation agreement “on or about” November 18, 1983. Of greater significance here we note that the appellants did not except to the clerk’s findings of fact that the document was a separation agreement and that the agreement was executed by the separating spouses “on or about November 18,” the date found to be the approximate date of separation.
Since the agreement was a separation agreement, there are well established principles concerning the consequences of reconciliation which apply here. “It is well settled in our law that a separation agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption [reconciliation] of the marital relation.” In re Estate of Adamee, 291 N.C. 386, 391, 230 S.E. 2d 541, 545 (1976). “Further, a subsequent separation will not revive the agreement.” Id. at 393, 230 S.E. 2d at 546.
Here, the clerk of superior court’s findings of fact clearly indicate that only 37 days after the date of separation and when the agreement was signed, the couple reconciled, re-established a matrimonial home, and for over 20 months held themselves out as man and wife “in the ordinary acceptation of the descriptive phrase.” Accordingly, I would hold that the agreement was “terminated for every purpose insofar as it remains executory” upon their resumption of the marital relationship. Carlton v. Carlton, 74 N.C. App. 690, 692, 329 S.E. 2d 682, 684 (1985).
“The executory provisions of a separation agreement are those in which ‘a party binds himself to do or not to do a particular thing in the future'. . . . ‘Executed’ provisions are those which have been carried out, and which require no future performance.” Id. at 693, 329 S.E. 2d at 684 [citations omitted].
*441Here, paragraph XIV of the agreement provides: “each party, nevertheless, agrees in order to fully effectuate this intention to execute in the future such additional claims, releases or other acquittances as may be necessary or appropriate for this purpose.” This language contemplates loss of the right to dissent, recognizes that it is executory, and may require further action as events occur giving rise to new rights. Here the agreement is void as to the executory portions because of the resumption of the marital relationship and the right to dissent is clearly contemplated by the agreement itself as an executory provision.
Additionally, the public policy of our State should encourage continuation of viable marital relationships and should favor reconciliation of temporarily separated spouses. Resumption of the marital relationship and its attendant legal consequences should be possible without the necessity for any formal revocation of earlier separation agreements or formal reexecution of marriage vows or other artificial complexities.
In the Carlton opinion, though speaking on a different issue (the effect of enactment of G.S. 50-20(d) on equitable distribution actions), our court summed up my views:
We do not believe that. . . the General Assembly intended that a written separation agreement, once entered into, would be forever binding. . . . Rather, the parties to separation agreements must still be able to cancel their agreements, and the indicia of the intent to cancel as developed in our common law, [I] believe, must also still be intact.
Id. at 694, 329 S.E. 2d at 685.
For these reasons, I dissent and would vote to affirm.