Nonetheless, a contract is illegal if it has for its object the procurement of a divorce, as where one spouse agrees to institute a divorce action. Dora v. Dora, supra; Zlotziver v.Zlotziver, supra; Mathiot's Estate, 243 Pa. 375, 90 A. 139 (1914); Commonwealth ex rel. Miller v. Miller, 176 Pa. Super. 64, 106 A.2d 627 (1954); Doering v. Doering, 157 Pa. Super. 9, 41 A.2d 358 (1944). The instant agreement is not illegal on the above basis either; the property settlement agreement entered here does not contain a provision requiring either party to initiate a divorce action and no agreement obligating either party to refrain from contesting a divorce action initiated by the other appears therein.
" See Hiett v. Hiett, 1905, 74 Neb. 96, 98, 103 N.W. 1051, 1052. A rather similar approach to judicial responsibility in such cases was indicated by the Superior Court of Pennsylvania when it said that "the court has not only the right, but the duty, * * * to inquire into the circumstances attending the execution of the agreement of separation and will enforce its terms only if it meets the conditions [of good faith] above stated." See Commonwealth ex rel. McClenen v. McClenen, 1937, 127 Pa. Super. 471, 193 A. 83, 84; Accord Commonwealth, ex rel. Miller v. Miller, 1954, 176 Pa. Super. 64, 106 A.2d 627. In all the circumstances we think the court below should have permitted the defendant to go into the issue of prior undisclosed marriage, even if this should have involved permitting an amendment of the pleadings during the trial and granting the parties additional time to marshal their evidence on so fundamental an issue of integrity and good faith.
d. Defendant's position must be not merely that the trust agreements were unenforceable, but that the ownership of the stock did not pass in accordance with their terms. It is true that the Pennsylvania courts have refused to enforce agreements which were clearly and on their face in consideration of a divorce. In re Shannon's Estate, 1927, 289 Pa. 280, 137 A. 251; Commonwealth ex rel. Miller v. Miller, 1954, 176 Pa. Super. 64, 106 A.2d 627. But we are not concerned with the question of whether the trust agreements were enforceable, i.e., of whether decedent could have been required to perform his agreements to transfer the stock to the trustee. He did perform the agreements, and the ownership of the stock was transferred in accordance with the agreements.
It is well-settled under Pennsylvania law that if the purpose of a contract is to obtain a divorce, or to facilitate the procurement or in contemplation of a divorce, the contract is illegal as against the public policy of fostering and protecting the marriage. See, e.g., American National Bank of Camden, N.J. v. Kirk, 177 A. 801, 802 (Pa. 1935); Miller v. Miller, 131 A. 236, 238 (Pa. 1925); In re Mathiot's Estate, 90 A. 139, 140-41 (Pa. 1914); Lurie v. Lurie, 370 A.2d 739, 741-42 ( Pa. Super. 1976); Commonwealth ex rel. Miller v. Miller, 106 A.2d 627, 629 (Pa.Super. 1954); see also Restatement (Second) of Trusts § 62 comment e. Furthermore, it is clear that a contract to create a trust must meet all of the requirements to have a valid contract, including adequate consideration. Otherwise, the document or act has no legal significance.
Marriage settlement agreements tending to promote or facilitate divorce are illegal and invalid as being contrary to public policy. 1 Nelson, Div. Annul., 504; 6 Williston, Contracts, Sec. 1743; 17 Am.Jur., Divorce, Secs. 14, 15-19, pp. 498, 500; Giddings v. Giddings, 167 Or. 504, 114 P.2d 1009, 119 P.2d 280; Commonwealth v. Glennon, 92 Pa. Super. 94; Commonwealth ex rel. Miller v. Miller, 176 Pa. Super. 64, 106 A.2d 627. Unfair agreements, entered into by a person suffering from mental disability, are unenforceable against that person.
" Appellee's counter-statement sets forth additional questions relating to public policy, material misrepresentation, and overreaching. For the purposes of our present decision it will be unnecessary to determine those issues, as we are clearly of the opinion that the language of the instant ante-nuptial agreement does not in any event operate to bar an award of alimony pendente lite. The validity of an ante-nuptial agreement depends upon the presence of one of two factors, namely, a reasonable provision for the wife or, in the absence of such provision, a full and fair disclosure to the wife of the husband's worth: Kaufmann Estate, 404 Pa. 131, 171 A.2d 48. The court must inquire into the circumstances attending the execution of an agreement of this character, and it will be enforced only if it meets the necessary conditions: Commonwealth ex rel. Miller v. Miller, 176 Pa. Super. 64, 106 A.2d 627. This appellee is entitled to have the validity of the instant agreement judicially determined. She cannot do so if she is deprived of her day in court.
Such an interpretation cannot be upheld. Miller v. Miller, supra; Com. ex rel. Millerv. Miller, 176 Pa. Super. 64, 106 A.2d 627 (1954). We agree with the court below that "when the wife petitioner in this case decided not to institute divorce proceedings she had a right to institute a proceeding for support and the agreement is not a bar to proceedings.
In Com. ex rel. McClenen v. McClenen, 127 Pa. Super. 471, 473, 193 A. 83, we said that separation agreements between husband and wife are valid, and will be upheld where they were entered into without fraud or coercion, were reasonable, and were actually carried into effect in good faith. See, also, Com. ex rel. Isaacs v. Isaacs, 124 Pa. Super. 450, 454, 188 A. 551; Com. ex rel. Mosey v. Mosey, 147 Pa. Super. 466, 470, 24 A.2d 59; Com. ex rel. Schaffhauser v.Schaffhauser, 164 Pa. Super. 54, 57, 63 A.2d 410; Com.ex rel. Miller v. Miller, 176 Pa. Super. 64, 68, 106 A.2d 627; Com. v. Richards, 131 Pa. 209, 219, 18 A. 1007; Frank'sEstate, 195 Pa. 26, 33, 45 A. 489. The circumstances attending the execution of the agreement were fully presented to the court below.