
127 S.E.2d 525 (1962)
257 N.C. 705
Van V. RICHARDSON, Jr.
v.
Georgianna Reeves RICHARDSON.
No. 169.
Supreme Court of North Carolina.
October 10, 1962.
*527 W. H. Childs, Jr., Lincolnton, for plaintiff appellant.
Charles T. Myers and Robert F. Rush, Charlotte, for defendant appellee.
BOBBITT, Justice.
The first, second and third issues were not raised by the pleadings but by the statute providing that the material facts in every complaint asking for a divorce shall be deemed to be denied by the defendant, whether the same shall be actually denied by pleading or not, and no judgment shall be given in favor of the plaintiff in any such complaint until such facts have been found by a jury. G.S. § 50-10; Taylor v. Taylor, 225 N.C. 80, 82, 33 S.E.2d 492, and cases cited; Moody v. Moody, 225 N.C. 89, 33 S.E.2d 491.
Defendant, in her answer, admitted plaintiff's allegations as to his residence and their marriage, and with reference to their separation averred: "and it is further admitted that they lived together thereafter as man and wife until the 29th day of February, 1960, and it is further admitted that they no longer lived together as man and wife after February 29, 1960."
All of the evidence tends to show plaintiff and defendant and their three children lived in the home at 5745 Murrayhill Road, Charlotte, N. C., until February 29, 1960; that on February 29, 1960, plaintiff and defendant entered into and executed a "Deed of Separation" in which they agreed thereafter to "live separate and apart from each other as fully and completely and in the same manner and to the same extent as though they (had) never been married"; and that continuously from February 29, 1960, until the commencement of this action on March 16, 1962, plaintiff and defendant had lived separate and apart from each other.
The "Deed of Separation," referred to in defendant's alleged plea in bar as "Articles of Separation," is referred to hereafter as the separation agreement. It was offered in evidence by plaintiff. The separation agreement, drafted by counsel for defendant, is dated February 29, 1960, and was duly executed and acknowledged by plaintiff and defendant on that date; and in accordance with G.S. § 52-12, the Assistant Clerk of the Superior Court of Mecklenburg County, after private examination of defendant, certified that it was not unreasonable or injurious to defendant but was "reasonable, just, and fair to her."
In their separation agreement, plaintiff and defendant agreed, inter alia, as follows: Each could acquire, own and dispose of property as if unmarried. Neither would molest the other or interfere in any way with the other's freedom of action. Plaintiff would not be responsible thereafter for the support of defendant. Defendant would have the custody of the three children of the marriage subject to plaintiff's prescribed rights of visitation. Plaintiff would pay specified amounts at specified times to defendant for the support of the children. Plaintiff would maintain and keep in force an $8,000.00 life insurance policy "with the same beneficiary or beneficiaries as listed thereon until such time as he may remarry, at which time he agrees to change the beneficiaries to his children, share and share alike." (Our italics) Plaintiff would pay all medical, hospital, doctor bills, etc., of his children. Plaintiff would pay all bills he or any member of his family had incurred prior to February 29, 1960. Plaintiff would convey to defendant all of his right, title and interest in and to the home at 5745 Murrayhill Road theretofore owned by plaintiff and defendant as tenants by entirety. Plaintiff granted, conveyed and *528 quitclaimed to defendant all his right, title and interest in and to all furniture, appliances, household effects and other personalty located in and about the home at 5745 Murrayhill Road.
The separation agreement recites that plaintiff and defendant "were married on January 25, 1947, and thereafter lived together as man and wife until the date of this agreement." Referring to said separation agreement, defendant testified: "Yes, it was agreed at that time that my husband and I would not live together as man and wife, and that I could go my way and he could go his."
Defendant does not allege or contend that plaintiff procured the separation agreement by fraud or duress. In this connection, see Pearce v. Pearce, 225 N.C. 571, 35 S.E.2d 636. No question as to the mental capacity of either plaintiff or defendant is involved. In this connection, see Moody v. Moody, 253 N.C. 752, 117 S.E.2d 724.
G.S. § 50-6 creates "an independent cause of divorce." Byers v. Byers, 222 N.C. 298, 303, 22 S.E.2d 902, where the history of this statute is set forth; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466. Suffice to say, where the husband and wife separate by mutual consent and thereafter live separate and apart for two years or more, such separation constitutes a ground for absolute divorce under G.S. § 50-6. Williams v. Williams, 224 N.C. 91, 29 S.E. 2d 39; Taylor v. Taylor, 225 N.C. 80, 33 S.E.2d 492.
Here, if the jury believed the evidence and all of it and found the facts to be as testified by the witnesses and shown by the documentary evidence, it was the jury's duty to answer the third issue, "Yes." Notwithstanding, the jury answered the third issue, "No."
Plaintiff assigns as error designated portions of the court's instructions to the jury, including the excerpts quoted below.
With reference to the third issue, the court instructed the jury, inter alia, as follows: "* * * if you find * * * the original separation was the fault of the plaintiff and that then the defendant signed this deed of separation under the idea that he would comply with it, that both parties would comply with it, and recited therein that they were living separate and apart and continued to live separate and apart, but that after that he failed to comply with the promises that he made when he signed the deed of separation, and that that failure to comply was his fault, that is that he was able to do otherwise, that he could have complied with it and didn't, then if you find that he didn't comply with it just because he didn't want to, not because he is not able to, then that would have the effect when he breached the contract, of placing them back in the same status insofar as the separation is concerned, as they were prior to the time they were, prior to the time the separation agreement was signed."
The phrase, "if you find * * * the original separation was the fault of the plaintiff," suggests there had been a separation prior to February 29, 1960. However, all the evidence tends to show plaintiff and defendant and their three children had lived in the home at 5745 Murrayhill Road until their separation on February 29, 1960. "Where the statute defines the ground for divorce as a `living separate and apart' for a certain period, the fact that while the parties have become estranged they continue to live under the same roof precludes a finding that they have lived separate and apart." 17 Am.Jur., Divorce and Separation § 185. It has been so held by this Court. Dudley v. Dudley, 225 N.C. 83, 33 S.E.2d 489. There is no evidence plaintiff and defendant "lived separate and apart" within the meaning of G.S. § 50-6 prior to February 29, 1960.
Admittedly, plaintiff did not comply fully with the terms of the separation agreement *529 with reference to the payments he agreed to make for the support of the children. The gist of the quoted instruction is that if the plaintiff could have but did not make all the payments he was obligated to make under the separation agreement, plaintiff's breach of contract in this respect nullified the separation of February 29, 1960, and on account thereof the relationship as between plaintiff and defendant was the same as if they had not separated on February 29, 1960. In our view, and we so hold, the quoted instruction was erroneous.
"A husband and wife live separate and apart for the prescribed period within the meaning of G.S. § 50-6 when, and only when, these two conditions concur: (1) They live separate and apart physically for an uninterrupted period of two years; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation." Mallard v. Mallard, 234 N.C. 654, 656, 68 S.E.2d 247, 248, and cases cited. All the evidence tends to show both plaintiff and defendant, when they separated on February 29, 1960, intended to cease their matrimonial cohabitation and thereafter live separate and apart and that they did so. This fact cannot be removed nor is its legal significance impaired by plaintiff's partial failure to pay the amounts he had agreed to pay for the support of his children.
It is noted: Defendant did not seek, nor did the court make, any allowance for her support. (Defendant's evidence tends to show she is employed and, including overtime, has gross earnings of approximately $500.00 per month.) While defendant prayed that plaintiff's "request for a divorce be denied," the only affirmative relief she sought was an order granting her custody of the children and requiring plaintiff (1) to pay all past due amounts, and (2) to pay "a reasonable and adequate sum each month for the support and maintenance of the children in the future," and for an allowance of fees for her counsel.
The terms of the separation agreement do not limit the authority of the court to make and enforce such allowances for the support of the children as circumstances may require. In this connection, see Thomas v. Thomas, 248 N.C. 269, 271, 103 S.E.2d 371, and cases cited.
With reference to the fourth issue, the court instructed the jury as follows: "Now, on issue # 4, if the defendant * * * has satisfied you from this evidence and by its greater weight, that the separation between the plaintiff and the defendant was occasioned and brought about by the acts of misconduct of the plaintiff * * *, then if you find by the greater weight of the evidence, the burden being on the defendant, then you would answer issue # 4 `yes.' If you are not so satisfied, you would answer it `no,' or if, upon a fair and impartial consideration of all the evidence, the weight of the evidence on that issue is equally balanced between the parties or if it outweighs in favor of the plaintiff, then you would answer issue # 4 `no,' because the burden is on the defendant to satisfy you by the greater weight of the evidence that the separation between the parties was brought about by the fault of the plaintiff. If the separation was brought about by the fault of the defendant, then the issue would be answered `no.' If the separation was brought about by the fault of both of them, your answer to # 4 would be `no,' because the burden is upon Mrs. Richardson the defendant to satisfy you by the greater weight of the evidence that the separation was brought about by the fault of Mr. Richardson, the plaintiff."
If it be conceded that defendant's pleading and evidence were sufficient to warrant submission of the fourth issue, the question would arise as to whether the quoted instruction is erroneous on account of the court's failure to instruct the jury as to what, in terms of defendant's pleading and evidence, would constitute "fault of the *530 plaintiff" within the meaning of the fourth issue.
Conceding, but not deciding, defendant's pleading was sufficient to raise the fourth issue, the burden of proof on this issue was on defendant. In such case, the uncontradicted evidence would require that the court instruct the jury to answer the fourth issue, "No."
True, where the husband sues the wife under G.S. § 50-6 for an absolute divorce on the ground of two years' separation, the wife may defeat the husband's action by alleging and establishing as an affirmative defense that the separation was caused by the husband's wilful abandonment of his wife. Johnson v. Johnson, 237 N.C. 383, 75 S.E.2d 109, and cases cited; Pruett v. Pruett, 247 N.C. 13, 25, 100 S.E. 2d 296, and cases cited. In such case, the burden of proof is on the defendant (wife) to establish her alleged affirmative defense. Taylor v. Taylor, supra; McLean v. McLean, 237 N.C. 122, 125, 74 S.E.2d 320.
Here, there was no wilful abandonment of defendant by plaintiff. Their separation on February 29, 1960, was by mutual consent. Whether plaintiff, while living with defendant, was guilty of such conduct as would have justified defendant if she had separated herself from him is not presented. Suffice to say, she did not do so. Plaintiff and defendant having lived together until their separation on February 29, 1960, and having then separated by mutual consent, defendant cannot attack the legality of their separation from and after February 29, 1960, on account of alleged misconduct while they were living together. Pearce v. Pearce, supra.
According to our decisions, the effect of a divorce a mensa et thoro, obtained by the wife on the ground her husband abandoned her, is to legalize their separation from the date of such judgment; and in such case the husband, after two years from the date of such judgment, may proceed to an absolute divorce. Lockhart v. Lockhart, 223 N.C. 559, 27 S.E.2d 444; Pruett v. Pruett, supra; Sears v. Sears, 253 N.C. 415, 117 S.E.2d 7. Where an original separation is caused by the husband's abandonment of his wife, and subsequently the husband and wife enter into and execute a valid separation agreement, their separation agreement would seem to legalize their separation from and after the date thereof. However, that factual situation is not presented on this appeal. Here, there was no separation of plaintiff and defendant except the separation by mutual consent on February 29, 1960, pursuant to the terms of the separation agreement.
Defendant cites and relies upon Pharr v. Pharr, 223 N.C. 115, 25 S.E.2d 471, and Butler v. Butler, 226 N.C. 594, 39 S.E.2d 745. In Pharr, this Court upheld orders (1) denying the plaintiff's motion to strike a portion of the defendant's answer, and (2) permitting the defendant to file an amended further answer and defense. In Butler, this Court held the plaintiff was entitled to allowances for subsistence and counsel fees pendente lite. These decisions relate solely to pleadings and interlocutory orders. While not sharply drawn into focus, it appears the controversy, to the extent a separation agreement was involved, related to whether the wife was precluded thereby from obtaining a court order requiring the husband to make the payments for her support. Suffice to say, the Pharr and Butler cases do not control decision on the facts established by the uncontradicted evidence herein.
For error in the instructions relating to the third and fourth issues, the verdict and judgment are vacated; and the cause is remanded for a new trial in accordance with the law as stated herein.
New trial.
