dissenting.
I must respectfully dissent.
No general quarrel is made regarding the factual account set forth in the majority opinion.
One matter needs to be clarified at the outset, however. The majority opinion discloses the overruling of a motion to strike the briefs amicus curiae submitted by the Women’s Legal Defense Fund, N.O.W. Legal Defense, and Education Fund and the American Civil Liberties Union of Western Missouri. At the time of oral argument, the author of the majority opinion, then presiding, attempted to overrule the motion. This writer objected and the third member of the division joined in that objection. The motion was ordered taken with the case. The majority opinion now declares the motion overruled. This writer does not support such ruling. It can only be presumed that the third member of the division now recommends and supports such ruling because he has embraced and approved the majority opjnion.
To be sure, there is a sparsity of cases in our state directing the setting aside of mar*777ital contracts under the rule of annulment. Two cases appear to have dealt with the question. They are Watson v. Watson, 143 S.W.2d 349 (Mo.App.1940) and Kshaiboon v. Kshaiboon, 652 S.W.2d 219 (Mo.App.1983).
The majority opinion predicates its result upon the incorrect presumption that appellant had no affirmative duty to disclose her lesbian behavior to respondent “and whether those known activities prior to the marriage went to an essential element of the marital relationship”.
The second portion of the majority premise is simple to address by mere reference to the evidence upon the record. The record reveals that respondent first learned of appellant’s lesbian behavior during pretrial discovery. Not only did respondent immediately repudiate appellant’s conduct, but (as the evidence clearly indicates) respondent would not likely have married appellant had the fact of her lesbian behavior been known to him prior to the marriage. The evidence is also quite clear that appellant knew and admitted that the marriage would not have occurred had her lesbian behavior been made known to respondent. Although appellant declared that she was not a lesbian, she freely admitted to two encounters with another female, once prior to the marriage and once subsequent to the marriage. There was evidence where she had been swimming with respondent’s daughter in the nude and that the two, on repeated occasions, exited the pool and engaged in touching. Additionally, there is evidence wherein appellant was in a hot tub with respondent’s daughter and her friends, and appellant removed the bathing suit of one of the daughter’s female friends.
There is no doubt that the evidence was sufficient to support a finding by the trial court as the trier of fact that appellant is a lesbian. It cannot be concluded, as is done in the majority opinion, that such behavior did not go to “an essential element of the marital relationship”, and the majority opinion, based upon the facts and circumstances upon this record, has simply reached the incorrect conclusion.
As to the first portion of the majority s question above, it is interesting to note that neither Watson nor Kshaiboon discloses, and certainly does not require, a showing of any “affirmative duty” to reveal. This is an element created by the majority opinion herein simply to achieve the result reached. Indeed, the cases researched by this writer do not disclose any such “duty”. It is clear to see how the majority opinion gets itself into such a position, because the limited number of cases on annulment have disposed of the question on the basis of fraud. The majority then refers to fraud and deceit as a subject within Am.Jur.2d, and the majority becomes satisfied by adopting the requirement of a “legal duty” as that term is utilized in the discussion on fraud and deceit.
As discussed infra, it is suggested by this writer that the unique relationship intended by a marital contract requires that the law should deal with it in a particular manner and not resolve any disputes relative thereto under principles applicable to nonmarital contracts. Indeed, there is a whole body of law in this nation which has done just that (i.e., dissolution actions, custody, marital property, child support, and maintenance) and yet the majority herein has chosen to apply definitions and principles more applicable to nonmarital contracts than marital contracts. Before discussion of this point, however, let us examine the “duty” rule and see if it applies herein, and if it is within prior rules laid down by our courts.
The majority opinion does not take exception to the rulings in Watson and Kshai-boon. Let it be assumed that both of these cases hold that an annulment was ordered upon the basis of fraud. Let it be further assumed that there was a breach of duty in both cases. The “duty breached” in Watson was the wife’s knowledge of the existence of pre-marital syphilis and her concealment of that fact. In Kshaiboon, the “duty breached” was the husband’s knowledge of his lack of the mental and physical capacity to engage in a normal sexual relationship with his wife and the concealment of that fact. It can then be concluded that *778both cases are likened to the present case in that one spouse was possessed with premarital knowledge and concealed that from the other spouse prior to the marriage. The evidence herein supports the finding that appellant knew of her lesbian behavior prior to marriage, did not disclose it to respondent, and indeed admitted that respondent would probably not have married her if her lesbian behavior had been disclosed to respondent.
When Watson and Kskaiboon are compared with the present case, it is obvious what the majority opinion has concluded. The majority opinion has ruled that an undisclosed venereal disease {in Watson) is a basis for annulment. The majority opinion has ruled that abnormal sexual behavior {Kskaiboon) is a basis for annulment. However, when faced with homosexual behavior, (lesbianism herein), the majority opinion dismisses such behavior as mere unchastity prior to the marriage. This conclusion is particularly puzzling in light of the majority opinion’s declaration that appellant’s lesbian behavior is “reprehensible conduct not in accordance with the normal mores of society”. By the reasoning set forth in the majority opinion, it must follow that pre-marital pregnancy, venereal disease, abnormal sexual behavior, and sterility are beyond unchastity, and serve as a basis for annulment; but that homosexual behavior is not, and pre-marital homosexuality is, akin to unchastity. The unsoundness of such reasoning is obvious. Further, such unsound reasoning does not equate with the majority opinion’s declaration that appellant’s lesbian behavior is reprehensible and not in accord with normal mores of society.
On a purely legal basis, the result reached by the majority flies in the face of both Watson and Kskaiboon. The conflict is obvious. Thus, it must be asked: Does the evidence herein cause a distinction to be drawn? The factual account set forth by the majority clearly dispels any doubt that this case should not be distinguished from either Watson or Kskaiboon, supra.
In reality, what appellant seeks, and obviously what the majority opinion supports, is the condonation of her lesbian behavior to the extent of pursuing her assertions within an action for dissolution. This must be so, because the majority concludes that appellant’s lesbian behavior was merely pre-marital unchastity.
While it is obvious that our society has changed and continues to change with the process of time, this writer cannot believe that our society is at a point of being willing to embrace homosexuality as a lifestyle worthy of social recognition and support. Further, this writer cannot believe that our society is willing, or even desirous, of our court’s pronouncing that homosexuality is merely akin to unchastity. To be sure, such behavior is unchaste, but it is far more than that and certainly is in no manner conducive to a wholesome marital relationship. In fact, such reprehensible behavior is a direct affront to a wholesome marital relationship, not to mention that such behavior is also reprehensible in all other social relationships additional to the marital relationship.
If appellant’s pre-marital and post-marital lesbian behavior is not relative to any essential element of the marital relationship, then can it be said that any conduct in any form ever will be? What of beastiality or any other conduct which might spring forth from the human mind? In other words, would beastiality be mere unchastity? If we follow the reasoning employed in the majority opinion, the answer would have to be yes.
Watson and Kskaiboon are directly applicable to the present case and should apply, even under the majority’s view of a required or applicable duty. Appellant had the “duty” to disclose her lesbian behavior, for such behavior is no different than the venereal disease element in Watson, and certainly was abnormal within the sense of that term under Kskaiboon.
The majority cannot avoid rules in Watson and Kskaiboon simply upon reference to the disclosure of appellant’s lesbian behavior during a dissolution proceeding, and after the fact that the parties had engaged in a sexual relationship spanning almost ten years. Such simplified reasoning ig-*779ñores the fact that the lesbian behavior of appellant only became known to respondent after the marriage. The disclosure of the lesbian behavior must be considered in light of and with specific reference to whether respondent would have entered into the marital relationship had appellant’s lesbian behavior been disclosed prior to the marriage. The evidence is clear that respondent would not have, and indeed appellant concedes that respondent would probably not have, entered into the marital relationship if disclosure had been made. That is the prospective within which this case must be placed, and it is obvious that appellant’s lesbian behavior and respondent’s rejection of such behavior goes directly to the marital relationship and is an essential element of that relationship.
This writer feels that the majority opinion, along with other courts, has failed to take the proper approach to the disposition of questions presented by such a case as the present case. At the very outset, our courts have either elected or have forgotten that the marriage contract is of a special nature; and more frequently than not, our courts choose to dispose of disputes arising from marital contracts along principles applicable to other forms of contract. The marital contract has been aptly defined as follows: .
Marriage is a contract under which a man and a woman reciprocally engage to live with each other during their joint lives and to discharge toward each other the duties imposed by law on the relation of husband and wife.” 55 C.J.S. Marriage § 1 (emphasis added)
The nature of the marriage contract has been defined thusly:
Marriage is generally considered a civil contract differing in notable respects from ordinary contracts, but it is also and specially a status or personal relation in which the state is deeply concerned and over which the state exercises exclusive dominion. 55 C.J.S. Marriage § 1(b) at 806
In the opinion of this writer, the courts, over the years, have made two glaring errors in the attempt to resolve the numerous disputes which have arisen from marital contracts. First, our courts have made the sexual relationship of the parties almost an exclusive criteria in too many cases. This is evident within the majority opinion which suggests that appellant’s lesbian behavior had nothing to do “with the essential part thereof [the marriage], sexual intercourse.” It is submitted that the majority opinion, in line with many other cases, has concluded that sexual intercourse is the one exclusive basis of the marital relationship. Indeed, sexual relations within the marital relationship are a vital and important part of that relationship, whether viewed as merely a pleasurable conduct or from the necessity of procreation. However, it is submitted that there are also other elements vital to the marriage relationship. Such a relationship provides the benchmark of an orderly society. Such a relationship provides the basis for a homestyle conducive of a wholesome environment for all the members of that relationship and to society collectively. It provides the basis for social stability so a society can collectively achieve an ever-expanding wholesome lifestyle. It provides a basis whereby the progeny thereof may feel secure and thus contribute even more to the overall good of society than their ancestors.
To be sure, the above is the ideal, and regrettably too often the goals intended by the marital relationship are not achieved. But it is submitted that such failures do not warrant or even allow for the adoption of any legal rule or principle which runs contrary to or fails to support such an ideal.
Hence, it has been, and if the majority opinion becomes the law of our state, it will continue to be a mistake to have resolved such questions as are presented by appellant’s lesbian behavior herein, simply upon a conclusion that such behavior has not impacted upon the sexual relationship between the parties. Stated another way, if the sexual relationship between the parties is to be the criteria, then any form of conduct by either party, no matter how repugnant or repulsive, is to be disregard*780ed so long as the sexual relationship between the parties exists. Such reasoning is not only an expression of ignorance, but it chooses to discount all other vital elements of the marital relationship. Thus, under such reasoning, the parties might have enjoyed a harmonious sexual relationship, but opposition or rejection of one as regards the other’s behavior could be present which is disruptive of the marital relationship, or at the outset might have prevented the establishment of the marital relationship, and yet such opposition or rejection could never serve as a basis for declaring the marital contract void or voidable.
Further, it has been error for our courts, as indeed the majority opinion herein has erred, to resolve marital disputes challenging the validity of the marital contract upon the rules and principles of fraud. Thus, our courts have engaged, and continue to engage, in an approach to such matters which allows them to avoid determination of the basic question, which is: Shall any and all forms or types of human behavior be acceptable in our society, and is it to be recognized and protected by our legal system? or, Are there recognizable limits to human behavior beyond which society will neither accept nor protect?
If the above question is applied to the present proceedings, it would read thusly: Is homosexual behavior an acceptable behavior in our society, and should it be recognized and protected by our legal system? or, Is homosexual behavior (to use the words of the majority opinion) “reprehensible conduct not in accordance with the normal more of society” beyond which society will neither accept nor protect? That is the question which the case herein presents, and the one which this court should answer in lieu of engaging in the fiction of fraud and deceit which has been the approach by courts previously, and in turn adopted by the majority herein.
The answer to the question by this writer is that, quite simply, homosexual behavior is such behavior beyond the recognized and acceptable limits and to which society owes no acceptance or protection. Thus, it follows that homosexual behavior should find no acceptance or protection and when discovered or disclosed relative to the marital relationship, such behavior can and should be a definite basis for voiding the marital relationship or contract, or serve as a basis for avoidance of the marital relationship or contract.
It appears that the courts have long been reluctant to face up to such questions, and it might even be said of today’s courts that they are intimidated to the point they will not face such questions. This intimidation rests in part from the noisy clamor from a distinct and definitely small minority claiming that a decision against the recognition, acceptance and protection of homosexuality in various ways, denies those desirous of engaging in homosexuality the right to do so. Such a decision does nothing of the kind. It merely states that society refuses to recognize such “reprehensible conduct” and the law will afford no protection or enforcement of any rights where such “reprehensible conduct” is in any manner involved.
The state, that is society, has the right to take such a position, particularly where the marital contract or relationship is involved, and it is irresponsible for any court to avoid facing the obvious question, and to, in turn, engage in some legal fiction to derive such a conclusion.
This dissent has not even bothered to address the drug addiction question in detail, because this writer deems affirmance is sufficient upon the issue of appellant’s lesbian behavior. However, this dissent cannot agree that appellant’s drug addiction, to which there was ample evidence, would not suffice as a basis for annulment. Furthermore, the effect of appellant’s drug addiction regarding respondent’s license to practice, or that it might affect respondent’s reputation, is not in issue herein. Appellant’s drug addiction, as regards grounds for annulment, is relative as to how it affected the marital relationship. The record is quite clear that respondent was adamantly opposed to the use of illegal drugs by anyone, including appellant. Thus, appellant’s drug use was another basis for the granting of annulment.
*781The judgment of the circuit court should be affirmed upon the basis that appellant’s lesbian behavior and her addiction to illegal drugs were disruptive of and even destructive of essential elements of the marital relationship, warranting an annulment of the marital relationship or contract.