¶1— I dissent. I agree with the conclusion of the majority opinion in'holding that the judgment of the trial *686court cannot be sustained upon the ground that (1) there was a valid marriage, (2) an attempt to contract a valid marriage, (3) a bona fide belief in the existence of a valid marriage, or (4) an express agreement of the parties as to their property rights. I disagree with the conclusion of the majority opinion that in order to sustain the judgment of the trial court there must be proof of a definite monetary contribution by the plaintiff in the form of separate property, or a contribution of her earnings as a waitress or from other employment outside the home. In the absence of any proof of any cash or property contribution by the plaintiff, the holding of the trial court that she owned a one-half interest in the property accumulated must have been based upon the conclusion that the value of her services as a housekeeper, cook, and homemaker was of sufficient value to warrant an equal division of the property. The majority opinion substitutes its own appraisal of the value of her services in the home as being of no more value than the cost of maintenance of herself and her two children. The holding of the trial court seems to me more reasonable.
¶2The existence of the illicit relationship even knowingly entered into, is no bar per se to an equitable division of the property. This is demonstrated by the eases cited in the majority opinion which hold that if there is an express agreement to pool property, or if the woman’s earnings contribute to its purchase, the existence of the illicit relationship, even knowingly entered into, does not bar an equitable division of the property. This state has determined as part of its fundamental public policy that a wife has a one-half interest in marital property. The same rule, by analogy, is applied where the parties enter into an illicit relationship but think, in good faith, they are married. The next step was taken in those cases which hold that express agreements to share equally in joint accumulations will be enforced, and the court will protect the interest of both where both contribute toward the purchase of the property even though they both knew the relation was illicit. Likewise, if an express agreement will be enforced, there is no legal or just reason why an implied agreement to share the property cannot be enforced. Unless it can be argued that a woman’s services as cook, housekeeper, and homemaker are valueless, it would seem logical that if, when she contributes money to the purchase of property, her interest will be protected, then when she contributes her services *687in the home, her interest in property accumulated should be protected. Just because the man, who in the instant case was equally guilty, earned the money to buy the property, should not bar the woman from any rights at all in the property, although her services made the acquisition possible. Such a rule gives all the advantages to be gained from such a relationship to the man with no burdens.
¶3The majority opinion concedes that in determining the value of a woman’s services in maintaining a home the courts have held, in instances involving the absence of a valid marriage but the existence of a bona fide belief in the existence of a marriage, that upon the termination of the relation, the property will be divided as community property would be upon the dissolution of a valid marriage and that the proportionate contribution of each party to the purchase of the property is immaterial. (Macchi v. La Rocca, 54 Cal.App. 98 [201 P. 143].) Unless the underlying purpose be to punish the woman for participating in the illicit relationship — which idea of punishment obviously has no just place in a controversy between two parties equally guilty- — why should not the same rule be applied to the instant case ?
¶4It should perhaps be noted that the trial court limited the recovery by the plaintiff to a half-interest in the property acquired during the period the parties cohabited subsequent to the divorce of the first wife and prior to defendant’s marriage to his second wife, hence no equities of third parties intervene, and the only question involved is that of the equities between the parties. To permit the defendant to retain the entire fruits of their joint efforts is contrary to the dictates of simple justice.
¶5Carter, J., and Peters, J. pro tem., concurred.
¶6Respondent’s petition for a rehearing was denied March 29, 1943. Curtis, J., and Carter, J., voted for a hearing.