I concur, but would add the following grounds:
In two actions for divorce, defendant wife Gleason appeals from the order denying her motion to dismiss the complaint and granting plaintiff’s cross motion to dismiss the first and second affirmative defenses, and plaintiff husband Goldstein appeals from the dismissal of his complaint. On June 22, 1954 and May 17,1960, defendants respectively were awarded decrees of separation. Predicated thereon, plaintiffs, defendants in the separation actions, seek divorces under subdivision (5) of section 170 of the Domestic Relations Law (added by L. 1966, eh. 254). Subdivision (5) enables a divorce on the ground that the parties have lived apart pursuant to a judgment of separation for the period of two years thereafter.
An action for divorce also may be maintained under subdivision (6) of section 170 if the parties have lived apart pursuant to a separation agreement made after August 1, 1966. The other four subdivisions of section 170 set forth grounds for divorce based on defendant’s fault.
Subdivision (6) is prospective in its application. Plaintiffs contend, however, subdivision (5) is retroactive, although it does not so provide. To the extent that subdivision (5) retroactively applies to defendants, it offends against the equal protection clause of the United States and New York State Constitutions (U. S. Const., 14th Amdt., § 1; N. Y. Const., art. I, § 11), and deprives defendants of their inchoate property rights and status rights conferred by the judgments of separation. (Livingston v. Livingston, 173 N. Y. 377, 383; Germania Sav. Bank v. Village of Suspension Bridge, 159 N. Y. 362.)
Section 170 provides two nonfault grounds for divorce. They are set forth in subdivisions (5) and (6). That grounded on a separation agreement (subd. [6]) is based on the consent of the parties given subsequent to its enactment. Thereby the parties to the agreement impliedly consent to the divorce thereafter made possible by the lapse of two years. The provision for divorce based on a prior separation decree (subd. [5]) *410in these cases obtained by defendants imposes the divorce on them to their detriment. In addition, subdivision (5) retroactively bestows on plaintiffs the right to a divorce which they did not have prior to its enactment and would not have been available to plaintiffs but for the decrees obtained by defendant wives based on plaintiff husbands’ misconduct. Thus, defendants, without their consent, are sought to be saddled with divorces they did not and would not seek if they had been apprised of their exposure to involuntary divorces at the time they sought and obtained their separation decrees. We cannot reasonably presume the Legislature, in the absence of clear and explicit language, ever intended such a harsh and unjust result. Thus, subdivision (5) is palpably discriminatory as to defendants who have been awarded separation decrees in failing to make available to them the right to consent or object to the divorce. Subdivision (5) also impairs the prior separation decree in that it makes it available to the guilty party as a sword against the nonconsenting successful party. (Livingston v. Livingston, 173 N. Y. 377, supra.)