(concurring in part, dissenting in part) — I agree with the majority that the superior court has jurisdiction to award separate maintenance quite apart from the pendency of a dissolution action. I respectfully dissent to the majority's holding that a guardian ad litem has the power to seek a dissolution when the legally incompetent person either rejects the suggestion that a dissolution be sought, or is not competent to express a choice realistically.
This court noted in Jones v. Minc, 77 Wn.2d 381, 384, 462 P.2d 927 (1969) that " [i]t is generally held that a *126guardian has no standing to bring an action for the divorce of his ward without specific statutory authorization. . . . To the extent that the grounds for divorce express injuries personal to the parties to the marriage, . . . such a rule is sound." (Citation omitted.) In the 16 years which have elapsed since this pronouncement, the rule remains sound and exists in practically every jurisdiction in the country.
During the intervening years between our pronouncement in Jones and this action, the Washington State Legislature completely revamped the dissolution law of Washington without granting a guardian the authority to bring an action for dissolution on behalf of his ward. Thus, despite our acknowledgment that a guardian lacked standing to bring a dissolution action on behalf of his ward without specific statutory authority, the Legislature did not include such authority in the newly enacted dissolution act.
The 1973 dissolution of marriage act, RCW 26.09, provides that a party petitioning for dissolution of marriage must allege that the marriage is irretrievably broken. RCW 26.09.030. Although an allegation that the marriage is irretrievably broken is all that is required to support a decree of dissolution, In re Marriage of Little, 96 Wn.2d 183, 192, 634 P.2d 498 (1981), this allegation remains personal to the petitioning spouse. See, e.g., In re Marriage of Pratt, 99 Wn.2d 905, 665 P.2d 400 (1983).
Recently, the Court of Appeals of Ohio held that the enactment of "no fault" dissolution provisions had no bearing on the continued viability of the rule.
"At the outset, it must be kept in mind that marriage is a civil contract, a personal and human relationship, as well as an institution. It cannot be created except by the consent of the parties. It cannot be dissolved except by the consent and the intelligent exercise of the will of one of the parties. That is to say, that no matter what or how many valid grounds for divorce exist, it is only by the decision and will of the party aggrieved that an action for divorce may be brought. Such aggrieved party may desire to condone acts that may have been committed by the opposite party. Such party may, for personal *127reasons, whether social, financial or religious, or out of consideration for the welfare of children or even other members of the families involved, desire that the marriage relation continue. There are no marital offenses which cannot be condoned. It is not the marital offense in itself that works the dissolution of the marriage union. It is the will and volition of the party aggrieved that invokes the judicial process to review the wrong and grant the relief which such will and volition of the aggrieved party has decided to request."
Boyd v. Edwards, 4 Ohio App. 3d 142, 147, 446 N.E.2d 1151 (1982) (quoting Shenk v. Shenk, 100 Ohio App. 32, 33-34, 135 N.E.2d 436 (1954)). See also Annot., Power of Incompetent Spouse's Guardian, Committee, or Next Friend To Sue for Granting or Vacation of Divorce or Annulment of Marriage, or To Make a Compromise or Settlement in Such Suit, 6 A.L.R.3d 681 (1966).
The Legislature wisely recognized that fault should play no role in a dissolution proceeding. It is not a marital offense that works a dissolution of a marital union, but rather the will and volition of the party to the union which works a dissolution. That a competent spouse may inflict marital injustices on an incompetent spouse does not negate the volitional nature of a marital union. The right of the injured party to regard the bond of marriage as indissoluble because of religious affiliation or for other personal reasons is so strictly personal that such relationship should not be dissolved except with the personal consent of the aggrieved party.
The Legislature has deemed it wrong to compel a party against his will to remain married once he complies with the no-fault provisions in the marriage dissolution act. I hasten to add that it is equally wrong to compel a divorce under no-fault, when neither party desires divorce. Traditionally the right to seek a divorce is considered a strictly personal right, insofar as marriage is a personal and human relationship as well as an institution. The vagaries of a changing society have not abrogated the strictly personal nature of the marital relationship. If the guardian ad litem *128has the right to maintain a dissolution action on behalf of an incompetent ward, why not also permit him the authority to effectuate a marriage on behalf of an incompetent ward. Both type actions may be in the best interests of the ward.
The common law remedy of providing separate maintenance to the spouses is sufficient protection for the incompetent spouse absent an expression of his wishes. I would hold that a guardian cannot petition for dissolution on behalf of a mentally incompetent person who has had no interval of lucidity, since the will of such a person cannot be known, and he or she may wish to condone the acts which form the basis of an irretrievably broken marriage.
Conclusion
Marriage is a sacred institution. The Legislature has provided for dissolution only on condition that at least one party to the marriage contract must allege that the marriage is irretrievably broken. RCW 26.09.030. The majority here, by eliminating this single requirement for a divorce, amends the divorce statute by judicial fiat. This they cannot constitutionally do. I dissent.
Andersen and Durham, JJ., concur with Dore, J.