Higgins v. Higgins

The majority bases its holding on Murphy v. Murphy, 295 N.C. 390, 245 S.E. 2d 693 (1978), in which this Court held that “sexual intercourse between a husband and wife after the execution of a separation agreement avoids the contract.” Murphy, 295 N.C. at 397, 245 S.E. 2d at 698. The decision in Murphy has been uniformly and severely criticized. An early critique stated:

This decision is supported neither by reason nor by precedent. It directly conflicts with a desirable policy of preserving marriages by encouraging reconciliation attempts between separated spouses who have made a separation…