Since 1890, the settled law of North Carolina has been that the "resumption of marital relations" will void a separation agreement to the extent that such an agreement remains executory. However, the definition of resumption of marital relations has remained uncertain. The North Carolina Supreme Court has held that a husband and wife resuming cohabitation and holding themselves out as living together as man and wife had resumed the marital relationship even without their engaging in sexual intercourse. The North Carolina Court of Appeals has held that resumption of sexual activity between estranged spouses does not void a separation agreement without a finding that both parties intended to resume marital relations. In Murphy v. Murphy the North Carolina Supreme Court rejected the court of appeals' requirement of intent and held that "sexual intercourse between a husband and wife after the execution of a separation agreement avoids the contract."' This note will examine the rationale behind and implications of the Murphy decision.



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