(concurring and dissenting). I concur in so much of the opinion of this court as fixes the property rights; but I dissent from so much of the opinion of this Court as awards Mrs. McClain an absolute divorce. I am of the opinion that Mrs. McClain should have only a limited divorce, rather than an absolute divorce.
Because limited divorces have almost “passed out of style” in our reported cases in the last thirty years, I think it well that Judges and others interested in marital relations should again give serious consideration to the granting of limited divorces: certainly such limited divorces would prevent remarriage of either spouse and might bring about a reconciliation. Therefore, at the risk of being academic, I desire to briefly review this matter of limited divorces in order to show why chancery courts in Arkansas should resume the custom of granting only a limited divorce in a case in which the complaining party has been guilty of any wrong.
Our Statutes and cases envision three kinds of proceedings in cases of marital difficulties:
(1) A separate action for maintenance, which is a transitory action that may be prosecuted in chancery. Section 34-1201, Ark. Stats.; Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Shirey v. Hill, 81 Ark. 137, 98 S. W. 731; Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86; Savage v. Savage, 143 Ark. 388, 220 S. W. 459; and Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096.
(2) A limited divorce — that is, from bed and board but not from the bonds of matrimony. In the old cases this is called by its Latin name, “divorce a mensa et thoro.” Section 34-1202, Ark. Stats., says1 that the Chancery Court “. . . shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony. . . .” This “bed and board” divorce is the limited divorce. See Bauman v. Bauman, 18 Ark. 320, 68 Am. Dec. 171; Crews v. Crews, 68 Ark. 158, 56 S. W. 778; Gray v. Gray, 98 S. W. 975; Shirey v. Shirey, 87 Ark. 175, 112 S. W. 369; Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, 24 A. L. R. 912; and Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38.
(3) An absolute divorce. This is called a divorce from the bonds of matrimony, and the old cases refer to it by its Latin terminology, i.e., “divorce a vinculo matrimonii.” See § 34-1202 as above quoted, and nearly every divorce case in our Reports, save only the few cited in Sec. (2) above.
For convenience in terminology, I will hereafter use the words “limited divorce” in referring to divorces from bed and board (i.e., divorce a mensa et thoro); and I will use the words “absolute divorce” in referring to the divorces from the bonds of matrimony (i.e., divorce a vinculo matrimonii). When the court grants a limited divorce, neither spouse can remarry, whereas when an absolute divorce is granted, either spouse is privileged to remarry at any time. The distinction between the two types of divorces is stated in 17 Am. Jur. 147, as follows :
“At common law and under the statutes in many states there are two distinct kinds of divorces — namely, the divorce a vinculo matrimonii or absolute divorce, and the divorce a mensa et thoro. The divorce a vinculo matrimonii or absolute divorce dissolves the marriage bond changing the status of the parties, while the divorce a mensa et thoro, sometimes called a decree of separation from bed and board, does not affect the status or dissolve the marriage, but merely relieves the parties from their obligations and rights as to cohabitation, support, and property interests.”
Likewise, the distinction is stated in 27 C. J. S. 522, as follows:
“Divorces are of two distinct types, absolute or a vinculo matrimonii, and limited or a mensa et thoro. An absolute divorce or divorce a vinculo matrimonii, sometimes termed simply a divorce, terminates the marriage relation. A limited divorce or divorce a mensa et thoro, sometimes called a legal or judicial separation, suspends the marriage relation and modifies its duties and obligations, leaving the bond in full force.”
When we read some of our cases in which the same person has been married four or five times, it seems that the courts ought to do something to prevent such a matrimonially-inclined person from being able to roam at large, and certainly a limited divorce would prevent a subsequent marriage. Back in 1857 when this Court decided tbe case of Bauman v. Bauman, 18 Ark. 320, divorces were rare; and there was no necessity to put a restriction on re-marriage. But now the number of divorce cases reaching this Court is alarming; and some check should be put on the remarriage of parties, both of whom have been at fault. Furthermore, limited divorces have a tendency to encourage reconciliation.
Section 34-1209, Ark. Stats., says that if both parties have been guilty of any offense complained of in the divorce action “. . . then no divorce shall be granted or decreed.” This is called the “recrimination section”; and originally our cases strictly and literally followed that law, so that a person seeking a divorce must show himself or herself to have been entirely guiltless before a divorce would be granted. See Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Healey v. Healey, 77 Ark. 94, 90 S. W. 845; and Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013. Those cases should still be the rule today in all instances, in which the Court grants an absolute divorce; and the doctrine of “comparative guilt” should be the rule to be applied in cases of limited divorce.
Gradually we have developed the doctrine of “comparative guilt,” and have awarded a divorce to the least guilty of the two parties.2 Thus in LeMaster v. LeMaster, 158 Ark. 206, 249 S. W. 589, we held that where a preponderance of the evidence showed that the husband was chiefly responsible, the wife was granted a divorce. In Hensley v. Hensley, 213 Ark. 755, 212 S. W. 2d 551, we followed this doctrine of “comparative guilt,” and said:
“. . . and while we find that she was not without fault, we also find that appellee was the chief offender, and we think a divorce should be granted appellant. LeMaster v. LeMaster, 158 Ark. 206, 249 S. W. 589.”
And in tlie case at bar, there is this language in the majority opinion:
“From the testimony of a number of witnesses, it appears that neither of these parties is without blame. "We have concluded, however, without detailing the testimony, that appellee was the lesser offender.”
Now I maintain that this doctrine of granting an absolute divorce on the basis of “comparative guilt” is in direct opposition to our Statute, § 34-1209, as above quoted.3 I further insist that under the case of Crews v. Crews, 68 Ark. 158, 56 S. W. 778, we should grant only a limited divorce where both parties are at fault; we can decide which is the least guilty of the parties and grant that one a limited divorce. In Crews v. Crews, Chief Justice Bunn quoted the findings of the Chancellor:
“. . . upon consideration the court finds that both parties are to a degree in fault and that neither is entitled to an absolute divorce, but finds that a decree of divorce from bed and board should be rendered. a
Thus in Crews v. Crews, the Court allowed a limited divorce on the basis of “comparative guilt”; and I insist that when both parties have been guilty even to different degrees, then the only kind of divorce that should be granted is a limited divorce. I think the case of Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804, does not in any way modify or overrule Crews v. Crews; and I think that chancellors should be encouraged to grant only a limited divorce to the lesser guilty of the two parties, and that an absolute divorce should be reserved to be granted only to a person who is entirely without guilt or fault. This would be a return to our old holdings; and sometimes a return to the old moorings is a very fine thing. In the hope that such may occur in divorce cases, I am writing this dissent.
It is interesting to note a fact that seems to have been overlooked by the Digesters of Arkansas Statutes: all of what is now § 34-1202, Ark. Stats., from the beginning down through the sixth section, is the same law that has existed verbatim (with the exception of circuit court and chancery court terminology) since Statehood. See Chap. 51, § 1 of the Revised Statutes of 1837; Chap. 58, § 1 of English’s Digest of 1848; Chap. 59, § 1 of Gould’s Digest of 1858; § 2195, Gantt’s Digest of 1874; § 2556 of Mansfield’s Digest of 1884; § 2505 of Sandel & Hill’s Digest of 1894; and § 2672 of Kirby’s Digest of 1904. In other words, ever since Statehood, the courts have had authority to grant both limited and absolute divorces.
For Annotations dealing with this doctrine of “comparative guilt” or “comparative rectitude,” see 63 A. L. R. 1132, 159 A. L. R. 734, and 21 A. L. R. 2d 1267.
We have some cases which in effect disavow the doctrine of “comparative guilt.” See Evans v. Evans, 219 Ark. 325, 241 S. W. 2d 713.