dissenting:
I respectfully dissent.
The previous appellate court opinions interpreting “termination of maintenance on remarriage” provisions in settlement agreements or divorce decrees do not control the instant case, nor are their analyses equally applicable to the instant context. These cases applied established contract principles to interpret the “remarriage” provision. Lehmann v. Lehmann (1922), 225 HI. App. 513, found that the parties intended the word “remarriage” to refer to the ceremony of marriage as distinguished from the status of marriage, stressing that the husband’s automatic termination of his alimony payments upon his former wife’s remarriage and the wife’s failure to demand these payments indicated their belief that the payments would terminate upon the ceremony of marriage. In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 425 N.E.2d 1301, concluded that the parties intended the term to refer to the ceremony of marriage rather than the status of marriage by finding no ambiguity in the term as referring to the occurrence of the event of the marriage ceremony. The court, in Thomas v. Thomas (1983), 111 Ill. App. 3d 1032, 444 N.E.2d 826, apparently did not agree that the agreement’s remarriage term was unambiguous when it looked to other evidence of the parties’ intent and found the husband’s actions in resuming alimony payments after the declared invalidity of his former wife’s marriage evidenced an intent that the term remarriage refer to the status of marriage rather than the ceremony of marriage.
In contrast to the above cases, we are confronted here -with a dispute as to the meaning of a statutory provision, where our role is markedly different than the role of determining and giving effect to the intent of interested parties to an agreement. The primary function of a court in interpreting and construing statutes is to ascertain and give effect to the legislature’s intent in enacting the statute. (Faheem-El v. Klincar (1988), 123 Ill. 2d 291, 527 N.E.2d 307; Department of Revenue v. Smith (1986), 150 Ill. App. 3d 1039, 501 N.E.2d 1370.) In performing this function, we must look to the entire statute and consider not only its language but also the reason and necessity of the law, the objective which the statute sought to accomplish, and the evils sought to be remedied. E.g., City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219; People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45; Baksinski v. Corey (1988), 173 Ill. App. 3d 1016, 529 N.E.2d 232, affd (1989), 127 Ill. 2d 316, 537 N.E.2d 323; People v. Moffitt (1985), 138 Ill. App. 3d 106, 485 N.E.2d 513.
Illinois case law interpreting the cohabitation provision in section 510(b) demonstrates the objectives the legislature sought to accomplish in providing for the termination of maintenance in the situations specified in that section. The legislature added the provision terminating maintenance upon the recipient spouse’s cohabitation with another “on a resident, continuing conjugal basis” to end the inequities caused by Illinois’ nonrecognition of common law marriages, when a former spouse who had entered into a nonlegalized husband-wife relationship was still entitled to maintenance. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1017, 495 N.E.2d 1383, 1385; In re Marriage of Ohm (1981), 98 Ill. App. 3d 316, 320-21, 424 N.E.2d 386, 396; In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 614, 405 N.E.2d 1156, 1160-61; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 661, 404 N.E.2d 469, 472.) In construing this “cohabitation” provision, Illinois courts have concluded that the legislative intent behind section 510(b) was to provide for the termination of maintenance whenever the recipient has entered into a husband-wife relationship (Reeder, 145 Ill. App. 3d at 1017, 495 N.E.2d at 1385; In re Support of Halford (1979), 70 Ill. App. 3d 609, 612, 388 N.E.2d 1131, 1134) and that the legislature’s inclusion of such a provision relates to the underlying rationale of maintenance— the need for support by the spouse who is to receive maintenance (Reeder, 145 Ill. App. 3d at 1017-18, 495 N.E.2d at 1385-86; Bramson, 83 Ill. App. 3d at 663, 404 N.E.2d at 473). In so doing, Illinois courts rejected the contention that the legislature was attempting to control public morals by providing for maintenance termination on cohabitation. Reeder, 145 Ill. App. 3d 1013, 495 N.E.2d 1383; Bramson, 83 Ill. App. 3d 657, 404 N.E.2d 469.
I do not believe the legislature’s intent, in providing for termination of maintenance upon “remarriage,” was to pass judgment on the equities of a supporting spouse’s obligation to pay maintenance when the recipient spouse had entered into a ceremony of marriage with another person. Rather, consistent with the conclusions reached by the above courts, I believe the legislature’s objective was to terminate maintenance in situations it believed affected the need for maintenance, namely, where the recipient spouse enters into the status of a husband-wife relationship. Under section 510(b), the marriage certificate itself sufficiently evidences this husband-wife relationship; whereas, in the absence of a legal marriage, the statute describes the conduct the supporting spouse must establish to prove such a relationship — cohabitation with another on a resident, continuing conjugal basis. (See Halford, 70 Ill. App. 3d at 613, 388 N.E.2d at 1134.) It necessarily follows that maintenance is not terminated under the statute where the legal marriage or marriage certificate which evidenced the “status” of marriage or husband-wife relationship is legally declared invalid.
Accordingly since the legal “marriage” which established Sandra’s marriage status was legally declared invalid, I would hold that Howard’s maintenance obligation was not statutorily terminated. This holding would render it necessary to address the issue not reached in the majority opinion of whether the trial court erred in denying Sandra’s motion to vacate the October 29 Agreed Order, entered subsequent to her remarriage and before the order declaring the invalidity of the marriage, on the ground that it did not operate to terminate maintenance under these circumstances.
The parties have-not offered any case law which governs the instant circumstances. Because the provisions of a settlement agreement are to be interpreted by normal contract rules (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 494, 509 N.E.2d 729, 737; In re Marriage ofKloster (1984), 127 Ill. App. 3d 583, 584-85, 469 N.E.2d 381, 383), I believe the application of contract principles governs the determination here.
At the time Sandra entered into the Agreed Order, she believed that Howard’s maintenance obligation was already terminated by her remarriage and by operation of law when, in fact, Howard’s maintenance obligation was not statutorily terminated due to the subsequently declared invalidity of the marriage. Sandra was mistaken as to the law in the inducement to the contract rather than in the writing of it; or, more simply stated, she was mistaken as to the law governing her situation prior to entering into the bargain. See 13 W. Jaeger, Williston on Contracts, §§1588,1589 (3d ed. 1970).
While the general rule is that equity will relieve for mistakes of fact but not mistakes of law (13 W. Jaeger, Williston on Contracts, §1582 (3d ed. 1970)), courts generally recognize an exception where the mistake relates to the private rights of the parties as distinguished from a mistake as to the general law. (E.g., Peter v. Peter (1931), 343 Ill. 493, 500, 175 N.E.2d 846, 850; Esquibel v. Brown Construction Co. (1973), 85 N.M. 487, 513 P.2d 1269; Ryan v. Vickers (1965), 158 Colo. 274, 406 P.2d 794; Furnace v. Furnace (Tex. App. 1989), 783 S.W.2d 682; In re Commonwealth Trust Co. (1947), 357 Pa. 349, 54 A.2d 649.) In Peter, our supreme court explained:
“ ‘Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights *** either of property or contract or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, *** equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical with, a mistake of fact.’ ” (Peter, 343 Ill. at 500, 175 N.E.2d at 850, quoting Pomeroy, Equity Jurisprudence, vol. 2, §849 (3d ed. 1905).)
Such a situation exists in the case at bar. Sandra was mistaken as to her existing private legal rights at the time she entered into the agreement. The fact that at the time of the agreement the statute operated to terminate Howard’s maintenance obligation and it only later developed that the statute did not operate to terminate his obligation does not render the exception inapplicable. In Ryan v. Vickers (1965), 158 Colo. 274, 406 P.2d 794, where an agreement was entered into between a lessee and the lessee’s landlord affecting the lessee’s debt obligations under the belief that the landlord’s lien took precedence over a third-party’s lien when, in fact, it was ultimately determined in court that the third-party’s lien had priority over the landlord’s lien, the court held that the above exception applied to vitiate the contract. Ryan, 158 Colo, at 279, 406 P.2d at 797.
In applying these contract principles here, I am cognizant that the cases disclosed by my research have involved situations where the parties were mutually mistaken as to the parties’ private legal rights. The record here does not demonstrate whether Howard was aware of Sandra’s remarriage and therefore mistaken as to the termination of his maintenance obligation at the time he entered into the agreement. • Nonetheless, Illinois law suggests that, under the instant circumstances, the fact that only one party was mistaken in this regard would not preclude equitable relief.
The common law rule that rescission is not available for unilateral mistake except where the other party knows or has reason to know the mistake has been eroded in many jurisdictions by an increasing number of cases which have permitted avoidance where only one party was mistaken. (J. Calamari & J. Perillo, Contracts, §9 — 28 (2d ed. 1979).) Illinois courts have held that a court of equity may rescind an agreement at the request of one party who entered into it without negligence, through a material mistake of fact, where the parties can be placed in status quo. Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 342, 472 N.E.2d 575, 578; McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 686, 462 N.E.2d 682, 686; HarneyMorgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 606, 455 N.E.2d 130, 134; Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 13, 80 N.E. 564, 565.
Equity demands that the Agreed Order be rescinded in the case at bar. The mistake here was material to the contract, as it is inconceivable that Sandra would have assented to relinquish all her rights to maintenance had she been aware that she was legally entitled to maintenance. Additionally, because the Agreed Order was entered within weeks of her remarriage, it cannot be said that she entered into the contract due to any lack of diligence on her part. Finally, by rescinding the Agreed Order, the parties would be placed in status quo, as Howard may proceed with his petition to reduce maintenance before the circuit court. Under these circumstances, I would hold that the trial court’s refusal to vacate the agreed order was an abuse of its discretion.