1. Where a husband and wife are living in a bona fide state of separation, a valid and binding agreement may be entered into between them by which the husband agrees to pay to the wife stated monthly sums for her support, which she agrees to accept in settlement of "all alimony, temporary or permanent, counsel fees, or any interest that she has or may have in his estate, and any and all other claims that she has or may have against" the husband or his estate, where it is provided that such payments shall cease upon the marriage of the wife; and where the parties are subsequently divorced and there is no claim made in the divorce suit for alimony, and no mention is made of alimony in the final decree, the decree is not a bar to the right of the wife to the monthly payments provided for in the agreement.
2. In a suit by the wife against the husband on the contract the wife is entitled to recover the arrearages due under the contract which accrued both before and after the divorce decree.
The defendant demurred to the petition on the ground that no cause of action was set forth, in that it appears (a) that it is an attempt to recover alimony in a separate proceeding after a total divorce has been granted between the parties, (b) that the decree of total divorce is conclusive between the parties as to alimony and the court does not have jurisdiction of a cause of action to recover *Page 225 alimony or a sum in the nature thereof after the relationship of husband and wife has been dissolved by a total divorce decree. The defendant further demurred on the ground that it appeared from the petition and the contract attached as an exhibit that such contract was entered into before the final verdict and decree in the divorce case, and it does not appear from the petition that the parties were (1) living in a voluntary state of separation, or (2) that the wife, against her will, was either abandoned or driven off by her husband, and that therefore there is no provision of law whereby the parties could make a valid contract in lieu of alimony, or an agreement that would be a bar to the allowance thereof, and such judgment granting a total divorce between them became conclusive upon them as to all questions of alimony and support for the wife, and a subsequent suit can not be brought for alimony or an allowance in the nature thereof. The defendant further demurred to paragraph 11 of the petition in which the plaintiff alleged that if she continues to be employed at her present rate of pay there will become due to her under the contract the further sums of $25 on the first day of November and on the first day of each month thereafter until judgment is rendered in the case, on the ground that such allegations can not be the basis of a recovery against the defendant. The defendant also demurred to that part of the petition in which the plaintiff prayed judgment for all other and further sums which might accrue and be due under the contract to and including the date of judgment, on the ground that further payments alleged to be due under a contract and which have not matured at the date of bringing the action thereon can not be recovered, in that no recovery can be had upon an alleged contract for payments not due at the time of the filing of the suit.
The judge overruled the grounds of general demurrer and sustained the special demurrers to paragraph 11 and to part of the prayer, and ordered paragraph 11 of the petition stricken. To this judgment the defendant excepted and sued out a writ of error to the Supreme Court. On November 13, 1940, that court transferred the case to this court on the ground that the action presented no equitable feature and did not otherwise come within the jurisdiction of that court. Hayes v. Hayes, 191 Ga. 237 (11 S.E.2d 764). The Supreme Court held that the suit on the contract was not a suit for alimony or an alimony case in the sense of the constitutional *Page 226 provision relating to the jurisdiction of that court, and further held that alimony is an allowance for the support of the wife out of the husband's estate allowed by a judgment or decree of court to the wife when she is living separate from him, and is not a "mere provision for support in a private contract between the parties."
It is the duty of a husband to support and maintain his wife. This duty flows from and depends upon the marriage relation. It attaches the minute the marital relation is assumed. It is a continuing obligation and ordinarily remains as long as the relation of husband and wife exists. Although a separation agreement between the husband and wife must be supported by a consideration in order to be enforceable, the duty of the husband to support the wife is a sufficient consideration to sustain his promise for such support while living apart from her. InWallace v. Wallace, 61 Ga. App. 789 (7 S.E.2d 604), the court held that the agreement by a husband to pay his wife a specified sum bi-monthly for her support while she was living apart from him and during the pendency of the divorce was valid, and that where the husband without cause breached such agreement a recovery by the wife of the arrearage in the payments was authorized. A contract providing for the wife's support and maintenance, and made after the separation has taken place, or immediately before a separation which has already been determined upon, is a valid and enforceable agreement. Watson v.Burnley, 150 Ga. 460 (104 S.E. 220).
The contract in this case was a valid and enforceable agreement by the husband to pay the wife, until her remarriage, a sum in lieu of both temporary and permanent alimony. The fact that the parties were subsequently divorced would not bar the plaintiff under the contract, unless the judgment in the divorce case adjudicated the plaintiff's right to permanent alimony. No such construction can be placed on the allegations of the petition in this case. The husband made a valid contract, to be effective until his wife should remarry. The contract did not provide that the parties would be divorced, but it provided that the plaintiff by such contract released and discharged the defendant "from any and all liability for her support, and for alimony, temporary or permanent, attorney's fees in any action that might be brought either against or by" the defendant, and it also provided that the plaintiff released and disclaimed *Page 227 any and all rights she might have against the defendant or his estate for a "year's support, dowry, or as an heir thereof, in the event of his death." It does not appear from the petition that the plaintiff was awarded any alimony under the divorce decree, or that her rights to alimony were adjudicated in the divorce decree. It is alleged in the petition that the contract was not set out in the pleadings in the divorce action or incorporated in the decree for divorce. Under the allegations the plaintiff was entitled to recover the arrearages due under the contract accruing both before and after the divorce decree. SeeMcDowell v. Engel, 31 Ga. App. 428 (120 S.E. 674).
This case does not fall within the ruling in Melton v.Hubbard, 144 Ga. 18 (85 S.E. 1016), where there was a judgment awarding the plaintiff alimony and the plaintiff accepted payment of such alimony as ordered in the judgment. The court held in that case that, "Having taken a judgment requiring the defendant to pay to her the amounts named in the judgment as alimony, and having received alimony under such order she thereby elected to abandon said contract and treat it as nonenforceable."
It follows that the trial court did not err in overruling the general demurrers to the petition.
Judgment affirmed. Sutton and Felton, JJ., concur.