concurring.
I concur in the opinion prepared for the Court by Justice Fones. The dissenting opinion is thoughtful and the result suggested is appealing. However, I do not believe that that result is justified under the present statutes on the subject of divorce.
The case of Brewies v. Brewies, 27 Tenn.App. 68, 178 S.W.2d 84 (1943) did not rest upon the alimony statutes existing at that time, but upon the divorce statutes which were then in force and which remain so at the present time.
In the Brewies case, each party was found to have established grounds for divorce. The Court made reference to the statute dealing with decrees in divorce cases, which was then code § 8444 and is presently codified as T.C.A. § 36-4-120(a) as follows:
If the cause assigned for a divorce be any of those specified in § 36-4-102, the defendant may make defense by alleging and proving the ill conduct of the complainant as a justifiable cause for the conduct complained of, and on making out the defense to the satisfaction of the court, the bill may be dismissed with or without costs, in the discretion of the court.
In the Brewies case the Court said:
This decree is self emasculating and cannot stand.
How can it be said that she was guilty of such cruel and inhuman treatment of him as would authorize a severance of the marital ties, and in the same breath say that he ‘walked out on cross plaintiff and refused to longer live with her’ (which we believe was intended to charge desertion) so as to authorize her to receive a divorce? Each was in fault, each was without fault, according to the decree. 27 Tenn.App. at 71, 178 S.W.2d at 85.
As stated, the opinion of the Court in that case did not in any way depend upon the alimony and support statutes. Admittedly, these have been extensively amended since the Brewies case was decided, but the statutes dealing with the grounds for divorce have not, except for the adding of some grounds not based upon fault, such as irreconcilable differences and separation for three consecutive years.
The General Assembly is presumed to know the construction and interpretation of statutes by the courts. See Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn.1977). The General Assembly has met repeatedly since the Brewies case was decided, and it has not changed the basic provisions of the fault-based statutes.
Rightly or wrongly, the divorce code, except for the statutes based on irreconcilable differences or absence for three years, consists of grounds comprising fault or misconduct. The divorce proceeding, again rightly or wrongly, is basically adversarial, being instituted by a sworn petition in which collusion must be denied. T.C.A. § 36-4-107. A jury trial may be demanded. T.C.A. § 36-4-113. Proof is required even when the allegations of the complaint are confessed, except for cases of irreconcilable differences. T.C.A. § 36-4-114. That section provides as follows:
If the defendant admits the facts charged in the bill or petition and relied upon for the ground for a divorce, or the bill be taken for confessed, the court shall, nevertheless, before decreeing a divorce, except a divorce on the ground of irreconcilable differences, hear proof of the facts alleged as aforesaid, and either dismiss the bill or petition or grant a divorce, as the justice of the case may require.
T.C.A. § 36-4-119 provides:
*789If, upon hearing the cause, the court is satisfied that the complainant is entitled to relief, it may be granted either by pronouncing the marriage void from the beginning, or by dissolving it forever and freeing each party from the obligations thereof, or by a separation for a limited time.
Obviously, there could be no valid distinction between a “complainant” and a counter-claimant. If both are entitled to a divorce under these fault-based statutes then, in my opinion, the law has been and remains that neither is entitled to obtain a divorce.
This result may not be socially appealing, as suggested by the dissent. Nevertheless, in my opinion, well-settled construction of established statutes should not be changed simply because of that fact.
If the General Assembly of the state wishes to adopt the principle of dual divorce, it may do so by amending existing statutes. Unless and until it does so, however, in my opinion the established interpretation of the statutes should be retained.
The parties in the present case are not without remedy, and their situation does not seem to me to justify reinterpretation of the divorce code merely because statutes dealing with division of property, alimony and support have been altered. These statutes are codified in different chapters from the provisions on grounds for divorce. It is apparent that when the ground of irreconcilable differences was added to the divorce code, the General Assembly went through that code carefully, specifically providing for proceedings under that ground. At the same time it left intact the grounds and procedures for fault-based proceedings. I do not believe that it intended, by amending the alimony and property division statutes, to change the provisions or the previous interpretations of the older divorce statutes.