dissenting.
The majority opinion grants approbation to an offensive practice pervading our society. The result is counterproductive toward allaying the turbulence in the wake of marital dissolution, one of the most devastating of all human experiences. There is something distasteful in requiring one to subsidize a former spouse, in his or her subsequent cohabitation. The policy manifesting this distaste is set forth in KRS 403.250(2) which provides for the termination of maintenance in the event of remarriage of the recipient, unless expressly agreed otherwise in writing. Under our system the bias of the law mandates a cessation of maintenance payments upon remarriage of the recipient. The rule has been extended to permit termination upon nonmarital cohabitation, a practice now commonplace and more frequently tolerated by the prevailing moral precepts of society. See Oldham, The Effect of Unmarried Cohabitation by a Former Spouse Upon His or Her Right to Continue to Receive Alimony, 17 J.Fam.L. 249 (1978). To me, it is insignificant whether the rule terminating maintenance be grounded upon moral circumstances, upon the practicable consideration that remarriage or nonmarital cohabitation removes the necessity of support or upon some neutral principle of law. For whatev*944er reason, maintenance is, unless agreed otherwise, terminated upon remarriage and not infrequently upon nonmarital cohabitation. The strength of this concept in our jurisdiction is amplified in McCord v. McCord, Ky.App., 558 S.W.2d 624 (1977), wherein it was held that a subsequent marriage, although later annulled, terminated maintenance payments and that the payments were not revived upon the annulment. In McCord, the Court was faced with the unprecedented issue of reinstating the maintenance payments against a former husband after a second marriage, of but a few weeks duration, ended by annulment. The Court opted for the stronger policy of forever terminating maintenance payments upon remarriage, notwithstanding the second marriage was later to be ruled an annulity. Thus, we have adopted the principle that cohabitation, under a voidable marriage, operates to permanently terminate maintenance payments. I believe this relevant to the case at hand. The McCord case lends credence to the fact that the ultimate consideration is not the simple need for maintenance. Certainly Mrs. McCord’s need for maintenance was as great, if not greater, after the termination of her second cohabitation. Nevertheless, the Court refused to reinstate her maintenance rights against her former spouse. The net result was that the Court felt that equity demanded termination of maintenance upon subsequent marriage although the latter marriage was in fact subject to annulment.
Consistent with the policy of our statute, the Lydics agreed to terminate maintenance upon Mrs. Lydic’s remarriage. The proviso was not an open-end agreement. Ct. Dame v. Dame, Ky., 628 S.W.2d 625 (1982). By its terms it was not subject to modification. True, Mrs. Lydic has not remarried in a traditional sense, but has chosen a lifestyle having the attributes of marriage. She is cohabiting with a member of the opposite sex and has placed her townhouse, a significant part of her estate, in survivorship with her male cohabitor. Every indication is that her cohabitation is intense and of contemplated endurance. In short, it is as permanent as a matrimonial affair. Indeed, if her relationship with her nonmarital cohabitor is to be dissolved, it may well involve a judicial determination of property rights. See Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976); Crutchfield, Nonmarital Relationships and Their Impact on the Institution of Marriage and the Traditional Family Structure, 19 J.Fam.L. 247 (1981); Annot., 3 A.L.R. 4th 13 (1981). Moreover, I am considerably influenced in my conclusion by the fact that at the time of the separation agreement nonmarital cohabitation was condemned as illegal under a criminal statute then in existence. KRS 436.070 (now repealed). In agreeing to the maintenance provision, Mr. Lydic was not bound to anticipate the engagement of Mrs. Lydic in an illegal act.
This jurisdiction is committed to the proposition that non-modifiable maintenance agreements, such as the one at hand, are in the nature of a contract. See Dame, supra. As such, it is my view that their validity may be determined in accordance with established principles of contract law. Under these principles, the executory maintenance contract may be rendered invalid for failure of consideration. I am compelled to conclude that, all things considered, the maintenance agreement is subject to voiding because Mr. Lydic anticipated that Mrs. Lydic would maintain herself in a position of probable remarriage. Such was a material part of the contractual consideration. Mrs. Lydic has chosen to place herself in a position which far lessens the probability of remarriage. At least her remarriage to one other than her cohabitor, to whom she shows no inclination to marry, would be predicated upon dissolving her present arrangement. In my mind this amounts to a failure of consideration for which the maintenance payments could be terminated under neutral principles of contract law.
For the foregoing reasons I respectfully dissent and would reverse the decision of the Jefferson Circuit Court.