dissenting.
I respectfully dissent. Both parties having made out grounds for divorce, and neither party having made out a defense, I would grant the divorce to both parties.
I.
Under prior case law, when both parties proved grounds for divorce, neither party was entitled to a divorce. Brewies v. Brewies, 27 Tenn.App. 68, 178 S.W.2d 84 (1943). Divorce was seen as “a remedy for the innocent against the guilty; hence, if both parties are equally at fault, a divorce will not be granted.” Id. 27 Tenn.App. at 72, 178 S.W.2d at 85. See also Brown v. Brown, 198 Tenn. 600, 281 S.W.2d 492 (1955); Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968); Schwalb v. Schwalb, 39 Tenn.App. 306, 282 S.W.2d 661 (1955).
As a practical matter, the courts recognized that some fault often, if not always, attached to the conduct of the prevailing spouse.
It is a matter of common knowledge among the members of the Bench and Bar that divorces are properly granted in many cases where the petitioning spouse may, to some extent, be in fault, yet the misconduct of the defendant spouse is so overwhelmingly disproportionate to that of the petitioning spouse as to constitute grounds for granting the petitioning spouse a divorce. This is properly done where the alleged and proven acts of misconduct on the part of the petitioning spouse are not such as to entitle the defendant spouse to a divorce or to constitute a defense to the action because of recrimination.
Akins v. Akins, 61 Tenn.App. 506, 456 S.W.2d 354, 358 (1969) (emphasis supplied). As the emphasized language indicates, however, the fault of the prevailing spouse could not reach the level by itself to constitute grounds for divorce or a defense of recrimination.
In recent years and since the development of the body of case law just discussed, the divorce and alimony statutes have undergone substantial change. In 1977, the General Assembly provided for divorce based on grounds of irreconcilable differences, without regard to fault. Pub-*790lie Acts of 1977, ch. 107, § 1 (T.C.A. § 36-4-103). In 1985, the General Assembly added an additional ground for divorce for parties, without minor children, who had lived in separate residences without cohabiting as husband and wife for a continuous period of three or more years. Public Acts of 1985, ch. 178, § 1 (T.C.A. § 36-4-101(12)).
These statutory changes represent a significant shift from the earlier policy of the state characterizing divorce as a remedy for the innocent against the guilty. For persons proceeding under these grounds, fault is simply not at issue.
Another important statutory change occurred with the 1983 repeal of T.C.A. § 36-826 and its replacement by § 36-820(d) [now § 36-5-101(d) ]. Public Acts of 1983, ch. 414, § 1. Section 36-826 (1955 Code) provided:
36-826. Relinquishment of right to alimony, dower or share in husband’s property if husband obtains divorce.— If the bonds of matrimony be dissolved at the suit of the husband, the defendant shall not be entitled to dower in the complainant’s real estate, nor to any part of his personal estate, in case of his intestacy, nor to alimony.
In order to understand this statute, we must look briefly at how it functioned within its legal and social background. Further, its explicit gender discrimination cannot go without some comment.
Alimony was allowed the wife in recognition of the husband’s common law liability to support her. Brandon v. Brandon, 175 Tenn. 463, 465, 135 S.W.2d 929 (1940); McClung v. McClung, 29 Tenn.App. 580, 198 S.W.2d 820, 822 (1946). There was (and is) no necessary connection between alimony and divorce; alimony can be awarded whether or not divorce is granted. Williams v. Williams, 146 Tenn. 38, 236 S.W. 938 (1922); T.C.A. § 36-5-101. Only the wife could receive alimony, the statute making no provision to decree alimony for a husband entitled to a divorce. T.C.A. § 36-820 (1955 Code); Brown v. Brown, 160 Tenn. 685, 28 S.W.2d 350 (1930). Under § 36-826, if the husband prevailed in a divorce action, his obligation to support and maintain the wife was at an end.
In Brown v. Brown, 198 Tenn. 600, 281 S.W.2d 492 (1955), this Court discussed § 36-826 as follows:
The policy underlying this provision is apparent. Divorce in this state is not a matter to be worked out for the mutual accommodation of the parties in whatever manner they may desire, or in whatever manner the Court may deem to be fair and just under the circumstances. It is conceived as a remedy for the innocent against the guilty. Brewies v. Brewies, 27 Tenn.App. 68, 178 S.W.2d 84. The unfortunate person against whom a divorce is granted may suffer not only the severance of his or her marital relations, but also the deprivation of those rights, such as alimony, which arise out of the marital relation. These provisions thus are intended to further the policy of rewarding the innocent and punishing the guilty. Allen v. McCullough, 49 Tenn. 174, 188.
198 Tenn. at 613, 281 S.W.2d at 498. We thus explicitly linked this statute with the overall policy that divorce is a remedy for the innocent against the guilty.
I will discuss below the constitutional infirmities of the gender-based classification. It is important for now to recognize the practical effect of the operation of § 36-826. The denial of alimony was certainly perceived, and not without reason, as entailing serious consequences for the wife. I am not suggesting that women have now reached full equality with men in employment and economic opportunity; however, the opportunities for a divorced woman to support and maintain herself were much more restricted when Brewies and its progeny were decided, than they are now, 45 years later. Had the courts held, contrary to Brewies, that both parties were entitled to divorce, the operation of the statute would have precluded alimony.
In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the U.S. Supreme Court held that Alabama alimony statutes providing that husbands, but not wives, may be required to pay alimony *791violated the 14th Amendment equal protection clause. Among the asserted justifications for the statutes were (1) that they provided help for needy spouses, using sex as a proxy for need, and (2) that they compensated for past discrimination which had left women unprepared for the working world following divorce. 99 S.Ct. at 1112. The Court accepted the importance both of assisting needy spouses and reducing the economic disparity between men and women resulting from the discrimination against the latter. It rejected the statutes, however, because the gender-based classification was not substantially related to these objectives, and in fact was gratuitous and unnecessary to the achievement of the legitimate objectives. Id. 99 S.Ct. at 1112-1113.
As a consequence of Orr, the General Assembly amended the Tennessee alimony statutes, including § 36-826 to make them gender neutral. Public Acts of 1979, ch. 339. As amended, § 36-826 provided:
36-826. Relinquishment of defendant spouse’s interest in plaintiffs estate and right to alimony. — If the bonds of matrimony be dissolved at the suit of the plaintiff spouse the defendant spouse shall not be entitled to any part of the real or personal estate of the plaintiff spouse, in case of such plaintiffs intestacy nor to alimony. However, when the cause of divorce is irreconcilable differences under § 36-801, the foregoing provision shall not apply if the parties have entered into a written property settlement agreement wherein the plaintiff consents to the payment to the defendant of alimony, either in a lump sum form or periodic payments; provided, that such property settlement is approved by the court granting the decree of divorce.
In Mitchell v. Mitchell, 594 S.W.2d 699 (Tenn.1980), this Court following Orr, held unconstitutional the pre-1979 Tennessee alimony statutes insofar as they contained gender-based classifications. (It should be noted that the Alabama statutes in Orr permitted the wife to recover alimony even if the husband received the divorce.)
Under § 36-826, as amended in 1979, it remained important for alimony purposes which party received the divorce.1 As previously mentioned, however, in 1983 § 36-826 was repealed. In its stead is the provision now codified at § 36-5-101(d):
(d) It is the intent of the general assembly that whenever appropriate an order for payment of support and maintenance shall be rehabilitative and temporary. In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:
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(10) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so....
While fault remains a factor in determining alimony, a guilty spouse is not automatically precluded from alimony. Moreover, by referring to “relative” fault, the statute implicitly recognizes that fault can lie with both parties, and indeed that fault could be equal. Seldom in contested divorce cases is the blame for the failure of a marriage placed wholly upon one spouse. It is rare that a spouse is “innocent” or without fault to some degree and frequently the difference in degree of fault is minimal.
II.
It is true that no statute explicitly permits a dual divorce. Nor does anything in the statutes expressly preclude a court, under circumstances present in the instant case, from granting both parties a divorce. We are left, as were the courts at the time of Brewies and its progeny, with the task of determining the policy of the state on this question, a policy found certainly in prior judicial decisions, but also and primarily in the statutes themselves.
*792“The public policy of a state is to be found in its constitution, its statutes, and the decisions of its courts. Primarily it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail.”
Hyde v. Hyde, 562 S.W.2d 194, 196 (Tenn.1978).
The revisions of our divorce and alimony statutes have in my view worked a change in the public policy of this state regarding divorce. Divorce can no longer be understood solely as a remedy for the innocent spouse against the guilty spouse. This is not to say that fault is irrelevant. Fault-based grounds, such as the ones at issue in the instant case, obviously remain, as well as fault-based defenses. .See, e.g., T.C.A. §§ 36-4-112, 36-4-120. And fault is one factor among many in determining alimony.
It is to say, rather, that the policy that a party must be without fault before he or she is entitled to a divorce no longer can be found in our divorce statutes. It cannot be reconciled with statutes permitting divorce without proof of fault or assumption of innocence. It cannot be reconciled with statutes that provide for alimony based, inter alia, on relative fault.
This Court has already recognized the public policy at issue in this case.
There is, however, another public policy consideration that is applicable in the aftermath of a hopelessly broken marriage, that was enunciated by this Court many years ago, a policy that also undergirds the legislative enactment allowing divorce on the ground of irreconcilable differences. In Farrar v. Farrar, 553 S.W.2d 741 (Tenn.1977), Mr. Justice Henry, writing for the Court said: “We fully recognize that considerations of public policy demand that the institution of marriage be sheltered and safeguarded. But there is an obverse side to the coin of public policy and consideration must be given to the fact that society is ill-served by a legally commanded continuance of a marriage which exists in name only. We quote from the opinion of the late Chief Justice Grafton Green, in Lingner v. Lingner, 165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933): As pointed out by another court, we must take into consideration ‘the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried.’ (Citation omitted.) Society is not interested in perpetuating a status out of which no good can come and from which harm may result.” 553 S.W.2d at 744, 745.
Hyde v. Hyde, 562 S.W.2d 194, 197-98 (1978). With the provision of alimony on a relative fault basis in 1983, this public policy has come, as it were, to full bloom.
A divorce is not granted to one spouse but denied to the other. A divorce dissolves a marriage, and frees both spouses equally. There simply is no such thing as divorcing one spouse but not the other.
I would overrule Brewies and the cases following it, but not because they were erroneously decided. To the contrary, those decisions were wholly consistent with and complementary of the statutes then in effect. But for the reasons I have discussed, the policy expressed in those decisions is no longer a good reason for denying both parties a divorce when both have proved grounds and neither has proved a defense.
It is apparent that this marriage is beyond the point of reconciliation and to require the parties to remain married, in name only as the majority opinion suggests, serves no useful purpose. Both parties sought a divorce and I feel substantial justice would not be accomplished by denying them a divorce.
Accordingly, I would grant both parties the divorce and remand the case to the trial court for a determination of alimony, if any, and the division of the parties’ marital property. I am authorized to state that Justice O’BRIEN concurs in this dissenting opinion.
. In Brewies v. Brewies, supra, the trial court awarded each a divorce from the other and the wife was given alimony. The husband argued that a decree giving the wife a divorce and alimony is void because a divorce had also been granted the husband. The trial court was reversed.