In the case at bench appellant Abraham Sasson (hereinafter Husband) and respondent Leora Sasson (hereinafter Wife) executed a marital settlement agreement dated May 4, 1977, which was incorporated into the parties’ interlocutory judgment entered August 22, 1977.
The marital settlement agreement in pertinent part provides: “[T]hat [appellant] shall pay to respondent as and for spousal support a non-modifiable sum of $350.00 per month for a period of six (6) years, and thereafter for an additional two (2) years a nonmodifiable sum of $250.00 per month. Said sums shall be payable one-half on the 1st and 15th day of each month, commencing April 15, 1977, and continuing thereafter until the first to occur of the following events: Respondent’s remarriage; Respondent’s death; [appellant’s] death or March 1, 1985, at which time said spousal support shall forever cease and terminate. Under no circumstances shall any court of competent jurisdiction have jurisdiction to modify said spousal support as to amount or duration; it being the express intent of this Order that [appellant’s] obligation to pay spousal support shall be for a period of eight (8) years on a non-modifiable basis unless otherwise designated as provided herein.” (Italics added.)
Husband sought relief before the superior court from paying spousal support to the Wife under Civil Code section 4801.51 on the ground that Wife was cohabiting with a person of the opposite sex. Husband’s order to show cause “Re: Modification” was heard on April 14, 1980. Wife did not contest Husband’s assertion that she was living with another man, Shalom Shahar, since November of 1977; that she had a son by Mr. Shahar; that the birth certificate shows the child’s name as “Lee Shahar” and Shalom Shahar as the father; that Wife signed medical and other documents stating that Shalom Shahar was her “husband”; that Wife consistently used the name “Shahar” and referred to herself as Mrs. Leora Shahar; that Wife and Shalom Shahar shared a joint bank account under the name “Shahar” and Wife had endorsed spousal support checks from Husband and deposited them into the joint account with Shalom Shahar; and that Wife consistently represented to her family, friends and to the community that she was married to Shalom Shahar.
*149The only rebuttal testimony presented by Wife at the order to show cause hearing on April 14, 1980, consisted of Wife’s testimony that she had not applied for a marriage license and never entered into a formal marriage ceremony since her marriage to Husband. The trial court denied Husband’s request for modification2 and Husband appeals from that ruling.
The case of In re Marriage of Leib (1978) 80 Cal.App.3d 629 [145 Cal.Rptr. 763], is factually and procedurally distinguishable and not helpful to a resolution of the case at bench. In Leib the spousal support was determined by the court. Here, there is a settlement agreement which included a provision for spousal support which was incorporated in the interlocutory judgment of dissolution. In addition, in Leib evidence was taken in the trial court directed at rebutting the presumption of wife’s decreased need by reason of the cohabitation. In the case at bench there was no evidence taken pertaining to such need. The only rebuttal evidence was Wife’s testimony that she had never remarried.3
I conclude, as does the lead opinion, that the trial court properly denied Husband’s request for modification. Here, the parties expressly agreed in their marital settlement agreement incorporated into the interlocutory judgment that spousal support was “nonmodifiable” and was to continue for the periods and in the amounts agreed *150upon and was to terminate only upon the occurrence, amongst others, of Wife’s “remarriage.” “[S]uch an agreement is specifically authorized by section 4811, subdivision (b). The agreed spousal support is therefore not modifiable[4] whether or not facts exist that would bring section 4801.5 into play.” (In re Marriage of Harris (1976) 65 Cal.App.3d 143, 151-152 [134 Cal.Rptr. 891].)
However, unlike the views expressed in the lead opinion, I tend to agree with Husband’s characterization of the Wife’s status as one “presumably enjoying a captain’s paradise, savoring the best of two worlds, and capturing the benefits of both.” (In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 449 [140 Cal.Rptr. 779].)5 This must be so when a Wife can elect to “Marvinize” rather than remarry in order to insure that “alimony” will keep coming in while engaging in a meretricious relationship and even bearing children out of wedlock while setting the stage for a possible future “palimony” suit against a present paramour.
Moreover, in all probability a portion of Husband’s support payments to Wife go to support her new paramour and the child fathered by another man since the support moneys are deposited in a joint account with Mr. Shahar. However, as unjust, one-sided and warped as such a state of affairs may appear to be, Husband is unfortunately bound by his own marital settlement agreement since Wife’s testimony ‘that she has never remarried is uncontradicted.
In view of the state Supreme Court’s case of Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106], and the Legislature’s enactment of the current Civil Code section 4801.5, it would appear advisable for spouses who are paying support moneys pursuant to a marital settlement agreement (usually the husband) to incorporate in such agreements a provision for termination of spousal support in the event the spouse receiving the support payments elects to cohabit with a paramour rather than enter into a formal marriage contract to insure that a former spouse’s support payments continue to roll in.
I also join in the concerns expressed by the trial judge (see fn. 2, ante). In my view the state Supreme Court in its blind rush to achieve *151by judicial decree complete equality between the sexes by its Marvin decision unwisely inflicted grievous injury on the very institution of marriage itself which is one of the basic legal and moral foundational blocks underpinning our society. I, therefore, urge the state Legislature to reassess the damage, confusion and impact on the courts caused by the Marvin decision and restore by legislative enactment some semblance of propriety in human relationships and dignity to this volatile field of law.
I concur in the judgment.
Lillie, J., concurred.
Civil Code section 4801.5 provides: “(a) Except as otherwise agreed to by the parties in writing, there shall be a rebuttable presumption, affecting the burden of proof, of decreased need for support if the supported party is cohabiting with a person of the *149opposite sex. Upon such a finding of changed circumstances, the court may modify the payment of support as provided for in subdivision (a) of Section 4801. (b) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this section, (c) Nothing in this section shall preclude later modification of support upon proof of change of circumstances.” (Italics added.)
The trial court in denying Husband’s request for modification stated:
“Counsel, we’re all concerned about this problem. There are income tax aspects to be considered. Persons who deliberately divorce and live together to avoid the added tax that a marriage will incur, which is being addressed by Congress currently. Your particular problem involved in this case is one that should be addressed by the legislature. I envision, for example, what would happen if the Respondent’s boyfriend dies. Does she claim under Marvin, or does she claim as a spouse? And I think at the moment she’d have to claim under Marvin and not as a spouse. So there’s pros and cons whichever way. At the moment the remedy, unfortunately, is not judicial but legislative.”
The case of In re Marriage of Leib, supra, 80 Cal.App.3d 629, involved a motion brought by ex-husband under Civil Code section 4801.5, as amended in 1976, for his ex-wife to show cause why the portion of the dissolution judgment requiring him to pay monthly spousal support should not be revoked since the ex-wife was cohabiting with another man of substantial annual income. The trial court held that the evidence rebutted the presumption of decreased need through their cohabitation. The Court of Appeal reversed with directions to the trial court to enter a finding that the statutory presumption was not overcome by the evidence and to reduce spousal support to $10 per month.
“... ‘Modification’ is the broader term and encompasses the term ‘termination’. In the context of the case at bench ‘termination’ is nothing more than a ‘modification’ to zero.” (In re Marriage of Harris, supra, 65 Cal.App. 3d at p. 152.)
The Baragry facts and issues are different and do not involve a settlement agreement in the nature entered into by the parties in the instant case.