I have no quarrel with the results of the main opinion except for the statement that each party was entitled to a divorce.
At common law a party who did not have clean hands could not expect a court of equity to hear his complaints. So a party who was himself guilty of marital misconduct could not persuade a court of equity to grant him a divorce from a spouse who was also guilty of marital misconduct. This rule was called recrimination and is in force and effect in many states at the present time.1
A number of states by recent decisions have held that recrimination need not be a bar to a divorce action but is a qualified or discretionary defense. Those cases hold that the trial court may consider the comparative rectitude of the parties and award a divorce to the party whose conduct is less offensive and against the party whose conduct is the principal cause of the marital discord.
Utah has aligned itself with the latter cases. In the case ofHendricks v. Hendricks,2 it was held:
To affirm that a guilty spouse is never entitled to a divorce is a position difficult to apply to the facts of life. It is seldom, perhaps never, that any wholly innocent party seeks a divorce against one who is wholly guilty. Awareness of this fact and the giving of attention to the social implications of divorce has given rise to the various exceptions and limitations on the doctrine of recrimination. A realistic approach to it is indicated by the court in the case of Dearth v. Dearth [141 Pa. Super. 344, 15 A.2d 37] wherein it concluded that where mutual delinquencies of husband and wife made further living together intolerable, a divorce should be granted and the court was not called upon to balance such delinquencies but only to determine which party was least at fault in causing the bad situation. This is based upon the doctrine of "comparative rectitude" which is often used and has been given tacit recognition by this court. Although some statutes specify that a divorce may be granted to "the party not in fault" our statute wisely contains no such provision. Our policy has been to take consideration of the practical exigencies of such situations, and in cases such as the instant one, where both are at fault, approve the granting of a divorce to the one least to blame.
While recrimination is not necessarily an absolute bar to granting a divorce in Utah, it has never been held that it would enable a trial court to grant to each guilty spouse a decree of divorce. It merely permits the judge to compare the conduct of the spouses and award a decree of divorce against *Page 1241 the one whose conduct was the principal cause of the intolerable condition into which the marital relationship had deteriorated.
Neither of the cases cited in footnote 1 of the main opinion was one where a decree had been granted to both parties. In theKnighton case the divorce was granted to the defendant, while in the Anderson case the decree had been awarded to the plaintiff.
To award a decree of divorce to both parties makes about as much sense as would an operation to sever two Siamese twins where, after one twin had been cut loose, the surgeon said, "Wait a minute; I still must cut the other twin loose."
A few states have permitted dual divorces to be given, some because of a state statute — others on the grounds of waiver by both parties — or that the matter was not raised on appeal.3
The better holding seems to me to be that unless one spouse is willing to try to save the marriage, no divorce should be given. To permit both parties to get a divorce is to leave the marriage relationship in the hands of the spouses and would compel the court to grant divorces where both parties wish to break up the marriage. If one party would attempt to save that marriage, the other party might also repent of evil doings and thus the marriage remain intact to the benefit of society.
It seems to me that courts are engaging in legislation when they give divorces contrary to the law as it has existed from time immemorial.
I would remand the case with directions to the trial court to decide whose conduct was the principal cause of the domestic discord and then to grant a divorce to the other spouse.