concurring and dissenting:
I agree that the trial court was without jurisdiction to enter the decree of September 4, 1980, and that the decree granting appellee a divorce must therefore be vacated and Appeal Number 2150 dismissed as moot. I also agree that the trial court’s order denying appellant’s application to proceed under the Divorce Code of 1980 (“Divorce Code”) is immediately appealable. In all other respects, however, I respectfully dissent.
I.
The question before this Court is, as aptly stated by the majority: How should a court decide whether to grant an application to proceed under the Divorce Code. The resolution of this issue turns on an interpretation of § 103 of the Divorce Code, which states that:
The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement *537executed prior to the effective date of this act or any amendment or modification thereto.
23 Pa.Stat.Ann. § 103 (Purdon Supp. 1981-82).
Initially, I note two aspects of this section. First, although the Divorce Code’s prospective application is mandated in the affirmative, its application to pending actions is phrased in the negative; that is, the provisions of the act “shall not affect any suit or action pending .... ” (emphasis added). Second, a pending action may proceed under the Divorce Code only “upon application granted . . . . ” (emphasis added). In my opinion, a reading of these two clauses leads to but one conclusion: that the legislature intended trial judges to have and to execute meaningful discretion to grant or to deny applications to proceed under the Divorce Code. Any other conclusion would, it seems to me, contravene the specific language of section 103.
Several considerations support what I discern to be the legislative intent regarding interpretation of the phrase “upon application granted.” First, the word “grant” (or a variation thereof) appears at least fifteen times in the Divorce Code.1 Without engaging in an exhaustive review, the following sections are illustrative of the sense in which the word “grant” is used:
Section 201(a) states that “[i]t shall be lawful for the court to grant a divorce . . . whenever it shall be judged that the other spouse shall have . . . . ” (emphasis added). Section 201(d)(2) states that “[i]f the court determines that the marriage is irretrievably broken, the court shall grant a divorce. Otherwise, the court shall deny the divorce.” (emphasis added).
Section 401(c) states that the court “. . . may grant such other relief or remedy as equity and justice require against either party. . . . ” (emphasis added).
*538Section 403(c) states that “[t]he court shall grant the petition upon a finding of a failure to disclose such assets as required under subsection (b).” (emphasis added).
In each instance, it is clear that the legislature’s use of the word “grant” manifestly requires the decision maker to operate within certain parameters; that is, the trial judge must find certain criteria to have been met before the relief sought is permitted, allowed or “granted”. Implicit in sections 201(a), 401(c) and 403(c), and explicit in section 201(d), is the notion that the trial judge may deny the relief sought. I find it most unlikely that the legislature would have intended the word “grant”, as used throughout the Divorce Code, to be susceptible of more than one interpretation.
Second, if the legislature had intended that an application to proceed under the Divorce Code be granted automatically, or virtually so, upon request, it could easily have included clear language to that effect. Or it could have included, as the Illinois legislature did, an express retroactivity provision. In enacting the Illinois Divorce Code in 1977, the Illinois legislature incorporated the following language:
Section 801(b). This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to any issue on which judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.
Act of Oct. 1,1977, Pub.L. No. 80-923, § 801(b), Ill.Rev.Stat Ch. 40, § 801(b). The Pennsylvania legislature could have adopted similar language but, significantly, it did not, even though section 103 does contain such an express provision regarding the prospective application of the Divorce Code, i.e. “The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act.”
Third, the majority states that the new Divorce Code is a “drastic and dramatic” repudiation of the Divorce Law of 1929 (“Divorce Law”) and that, therefore, applications to proceed under the Divorce Code should be granted, virtually on a pro forma basis, because to do otherwise would be *539contrary to its underlying philosophy. I take issue with the majority’s characterization inasmuch as it ignores the fact that all fault grounds for divorce have been preserved in the Divorce Code, the parties may still proceed under the Divorce Law and the punishment concept is retained in the Divorce Code provisions permitting alimony to be denied or diminished by virtue of, inter alia, marital misconduct. See section 501(b)(14). Thus, I believe that the “drastic and dramatic” characterization is unwarranted. The majority further asserts that, in enacting the Divorce Code, the legislature repudiated the notion that the trial court should be concerned with the vindication of private rights and the punishment of matrimonial wrongs.2 I consider this, too, an overstatement. The language in question, found in section 102(a)(3) reads, “give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.” (emphasis added). It is my view that the legislature intended only that the vindication of private rights or the punishment of matrimonial wrongs be subordinated to the welfare of the family, and not that they be ignored.
Finally, the majority compares the language in section 102 of the Proposed Divorce Code of 1961 (Proposed Code) to the language in Section 102 of the Divorce Code and concludes that the factors enumerated in section 102 are the exclusive *540factors to be considered by the trial court in deciding a transfer application. I disagree with this analysis for several reasons. First, section 102 of the Divorce Code differs from section 102 of the Proposed Code in that the Divorce Code omits the reference to “any provisions” (emphasis added) found in the Proposed Code. The Divorce Code provides only that the objectives listed in section 102 shall be considered in “construing provisions of this act”, whereas the language of the Proposed Code mandated consideration of section 102 objectives in “construing any provisions of this act.”3 Consequently, I am not convinced that section 102 of the Divorce Code necessarily mandates consideration of the section 102 objectives in construing section 103, the “pending proceedings” provision. Second, I believe it is a mistake for the majority to place reliance on a comment to a proposed, but unadopted code, when attempting to interpret a Divorce Code provision which utilizes different language. Third, there is no language in the Code which supports the majority’s arbitrary view that section 102 factors are the sole criteria to be considered in evaluating a transfer application, nor even which supports a view that such factors are dispositive or controlling when they are in conflict with equitable considerations.4
I am in agreement with Judge Popovich insofar as he concludes that the words “upon application granted” either imply discretion or they do not.5 Thus, if discretion is *541implied, as I conclude, and the majority agrees, then that discretion cannot be limited to a review of section 102 factors; it is limited only by ordinary constraints on the equitable powers of the Court. The majority’s conclusion that the “range of discretion is extremely narrow,” at 692, justifies Judge Popovich’s view that the majority merely “pays lip service to the principle that ‘the court to which the application is presented must decide whether to grant or deny the application.’ ” At 705, (Popovich J., concurring) (emphasis in original).
To merely pay “lip service” to the phrase “upon application granted” flies in the face of the legislature’s clearly expressed intent to permit retrospective application of the Divorce Code only at the discretion of the courts. Moreover, it violates the fundamental rule of statutory construction that statutes, other than those affecting procedural matters, must be construed prospectively except where the legislative intent that they shall act retrospectively is so clear as to preclude all questions as to the intention of the legislature. Farmers National Bank and Trust Co. v. Berks County Real Estate Co., 333 Pa. 390, 5 A.2d 94 (1939); Costa v. Lair, 241 Pa.Super.Ct. 517, 518, 363 A.2d 1313, 1314 (1976); See 1 Pa.Con.Stat.Ann. § 1926 (Purdon Supp. 1981-82). Given the well settled rules and strong public policy against retrospective operation, the statutory exception “upon application granted” must be strictly construed. The majority’s “lip service” utterly fails to satisfy this requirement.
For the foregoing reasons, I conclude that the decision, whether to grant or deny an application to proceed under the Divorce Code, is within the discretion of the trial judge. That is, the application should neither be granted nor denied pro forma. Rather, the decision must depend, in the first *542instance, upon the exercise of sound discretion by the court in which the action is pending.
II.
The next step then is to determine the factors to be considered by the trial court in the exercise of its discretion. The majority relies exclusively upon section 102 for determining when an application should be granted, and concludes that, properly considered, the objectives therein set forth will mandate granting the application in virtually every case.
At least one commentator has noted that the language of the Divorce Code suggests that other factors may be relevant in evaluating a transfer application:
“In its generally broad terms, the Act at least implies application by either party and a discretionary power in the court to grant or refuse the request. As the case law develops, it is possible that such factors as the timing of the filing of the complaint, the progress of the case, the time or expenses incurred at the time of application, and even equitable principles such as laches will become determinative.”
Perlberger, Pennsylvania Divorce Code § 2.3.2 (1980). Perlberger posits that the legislature may have provided a transfer procedure in anticipation that cunning practitioners would file suit between the passage of the new act and its effective date in order to gain a tactical advantage. Pennsylvania Divorce Code, supra. Under this view, transfers would be granted only under the narrowest circumstances, i.e., where an action was filed solely to avoid the application of the Divorce Code.
To grant applications to proceed under the Divorce Code in the manner advocated by the majority would obviate the need to balance the objectives enumerated in section 102 and would eliminate consideration of other factors. However, such a course necessitates an impermissible disregard of the clear language of the statute.
*543The proper solution, I believe, is for the court, before whom an application is pending, to consider the section 102 objectives as well as all other equitable considerations,6 to balance the equities and make a determination accordingly. The balancing test should be conducted in the following fashion. The party making the application ought to bear the burden of persuasion and be required to show that there are equitable considerations that will be furthered if the application is granted. When such a showing has been made, the party opposing the petition will be required to present evidence that the movant will be unfairly advantaged, or that the opposing party’s rights will be unduly prejudiced, if the action were to proceed under the Divorce Code. If the trial judge is then able to conclude that the equities favor proceeding under the Divorce Code, the petition should be granted.
Such a balancing test would, I believe, satisfy the legislative intent, protect the interests of the parties and provide the trial judge with an appropriate framework for decision-making. It would, in addition, be a more equitable, and yet more pragmatic approach, than the suggestion, set out in the majority opinion, that “[i]f granting the application will *544further [the] objectives [set out in section 102], the court should grant the application, if granting the application will be inconsistent with those objectives the court should deny the application.” At 690. Such a solution, though superficially attractive in its seeming simplicity, fails to take into account several important factors.
First, there may be instances where granting the application will be consistent with some objectives of section 102(a) and inconsistent with others. Second, although the criteria set out in section 102 evince the legislative intent behind the enactment of the Divorce Code in the first instance, standing alone they do not provide adequate guidance to trial judges presented with an application by a party seeking to proceed under the Divorce Code. For example, there are cases, such as the instant one, where the section 102 objectives afford little, if any, guidance to the trial court.7
*545Third, although the majority recognizes that granting an application to proceed when the pending action is at an advanced stage may cause certain “economic consequences,” at 696, it fails to consider other significant and adverse consequences that are the invariable concomitants of prolonged divorce litigation. The emotional and psychological wounds, suffered by the parties and members of their family, as they await a final disposition so that they may “pick up the pieces” and commence new lives, will be exacerbated by the grant of an application to proceed under the Divorce Code. These effects cannot be alleviated by any subsequent adjustments in the distribution of the marital property. Rather, I believe they are factors that must be taken into account when considering an application to proceed under the Divorce Code. The analytical framework I advocate will allow a trial judge to weigh both the economic and equitable aspects of allowing an action to proceed under the Divorce Code.
I do not suggest that the posture or stage of the pending action be the sole consideration in determining whether to grant a petition to proceed under the Divorce Code. However, simple fairness dictates that the stage of the proceedings be given some consideration in determining whether the parties should be required to proceed under the Divorce Code.8 If, for instance, the action had been commenced *546prior to July 1, 1980, but no hearings had been held, there would be little, if any, reason for not allowing the action to proceed under the new law. On the other hand if, on July 1, 1980, the trial of the issues had been held and the proceedings were complete except for the entry of a decree by the court, a court should proceed cautiously before requiring the parties to change course and proceed under the new law.9
In order to promote uniform and certain results, the majority implicitly, and the concurring opinion of Judge Popovich expressly, would, respectively, severely restrict or wholly deny the discretion of the trial court. I submit, however, that both approaches are in conflict with the express intent of the legislature. If the uncertainty, which would assertedly be the inevitable concomitant of discretion, is to be supplanted by the certainty which would attend the arbitrary granting of all petitions filed, then the legislature can and should amend the Divorce Code. It is within the province of the legislature to do just that. However, to date, such “corrective” legislation has not been adopted.10
*547III.
I turn now to an examination of the implementation of the solution I espouse and its application to the present case. First, the party seeking to proceed under the Divorce Code would file an application with the lower court. Next, the trial court would ordinarily hold a hearing on the application.11 The hearing would serve several purposes. It would enable the trial judge to fully scrutinize the merits of the petition. It would also provide a record for appeal purposes.
Although no evidentiary hearing was held on the transfer application in the instant case, the trial court, upon stipulation of counsel, considered the averments in the transfer petition and answer, as well as the testimony and record of the divorce proceedings. The court found that the divorce action was begun in January of 1979, more than a year and a half before the filing of the petition. Further, the trial court found that a master had been appointed, numerous master’s hearings held, and that a recommendation by the master was made that Appellee be granted a divorce from Appellant. Exceptions were filed, heard and ultimately dismissed on July 15, 1980. T.C. Slip Op. at 2. Based upon all the foregoing, the trial court found no equitable considerations in favor of allowing Appellant to proceed under the Divorce Code. T.C. at 3.
The facts relied on by the majority, at 693-694, were controverted by Appellee’s reply to Appellant’s transfer *548petition. Questions of fact on motions and other special proceedings are for the lower court to resolve and the lower court’s findings will be respected on appeal when supported by the record. See, Pennsylvania Power & Light Co. v. Gulf Oil Corp., 270 Pa.Super.Ct. 514, 411 A.2d 1203 (1979), cert. denied 446 U.S. 966, 100 S.Ct. 2943; Com. ex rel. Schwarz v. Schwarz, 252 Pa.Super.Ct. 95, 380 A.2d 1299 (1977). Absent an error of law or a clear, manifest abuse of discretion, the lower court’s decision should not be reversed. See, Moss v. Consolidated Rail Corp., 277 Pa.Super.Ct. 192, 419 A.2d 727 (1980). I find neither an error of law nor an abuse of discretion and, accordingly, I would affirm the order of the trial court.
HESTER, J., joins in this concurring and dissenting opinion.. In addition to section 103, the word “grant” appears in sections 102(a)(6), 201(a), 201(b), 201(c), 201(d)(1), 201(d)(2), 301(a), 301(b), 401(b), 401(c), 401(j), twice in 403(c), and 702 of the Divorce Code.
. The mischief which can result from such an overstatement is made manifest in the majority’s criticism of the lower court’s reference to the fact that Appellant had lost in the divorce action: “In thus pointing to appellant’s loss on the merits of a fault-based divorce action, the court ignored the legislature’s mandate that under the Divorce Code, marital fault plays no part in the equitable distribution of property, and that marital fault is only one of the fourteen factors to be considered with regard to alimony.” at 694 (citations omitted). The majority’s reasoning is founded upon a flawed premise, i.e. that because marital fault may not be considered in connection with the equitable distribution of property, it must similarly be ignored when giving consideration to an application to proceed under the Divorce Code. The Divorce Code does not support such a premise. Rather, to the extent that section 102(a)(3) is to be considered in acting upon such an application, it permits, if it does not require, that “punishment of matrimonial wrongs” be at least given secondary consideration.
. Unquestionably, it was the reference to “any provisions” which prompted the official comment to section 102 of the Proposed Code to note: “The provisions of this section ... are intended to apply to the entire code, including provisions of Section 104 relating to ‘Pending Proceedings.’ ” See at 689. There is no official comment to the Divorce Code, and section 102(b) thereof, in significantly omitting the word “any”, does not support a construction such as quoted above.
. Section 102(b) of the Divorce Code merely provides:
The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.
. If, as the majority suggests, the “phrase ‘upon application granted’ implies that the application may be denied”, at [693], and since the *541word “granted” is not modified by any other clause, there is no textual support for the majority’s restrictive interpretation that “the range of discretion is extremely narrow, being limited to a consideration of whether granting the application will be consistent with the objectives described in section 102 of the Divorce Code.” At [693] (emphasis added). Either the words of the statute imply discretion or they do not.
At 705, (Popovich, J., concurring).
. In addition to the factors set out in section 102, the following criteria ought also to be employed in determining whether an application for permission to proceed under the Divorce Code of 1980 should be granted:
(1) Judicial time already expended;
(2) The length of time the action has been pending;
(3) The stage that the proceedings have reached at the time the application is filed;
(4) The relative good faith of the parties, i.e., whether one party appears to have deliberately delayed the matter so as to prolong it beyond the effective date of the Divorce Code, on the one hand, or to have deliberately hastened an adjudication so as to preclude application of the Divorce Code, on the other;
(5) The costs and fees that have been incurred;
(6) The anxiety, trauma and disruption that has been experienced by the parties and their minor children, if any, by virtue of the length of time the action has been pending and is likely to continue should the application be granted.
The foregoing list is not intended to be all inclusive. It merely represents some of the considerations that would appear to be relevant to a trial judge’s ruling on an application to proceed under the Divorce Code.
. Applying the pertinent provisions of section 102(a) to the application in the instant case, as does the majority, the following conclusions may be drawn:
(1) Section 102(a)(1) is not pertinent instantly since the evils it seeks to eliminate are no longer present in the case. That is, there has been an extensive hearing on the issue of grounds, the master has recommended divorce and exceptions thereto have been dismissed. Thus, “the realities of the [Gordon’s] matrimonial experience” have been adequately considered. The majority asserts that such matters as the contributions of each party to the marriage, or the need for rehabilitative alimony, have not been considered. This assertion is true, but begs the question. Otherwise, as the majority recognizes, every application will perforce be granted, since such factors will never have been considered in matters pending under the Divorce Law;
(2) Section 102(a)(3) is likewise uninstructive in the instant case since permitting this action to proceed under the Divorce Code would not demonstrably “give primary consideration to the welfare of the family”;
(3) Section 102(a)(4) also is not helpful. Permitting the action to proceed under the Divorce Code at this juncture would not mitigate the harm to the “children caused by the legal dissolution of the marriage.” To suggest, as does the majority, that the harm to children which is to be mitigated includes the avoidance of any future financial responsibility they might incur as to one or the other of their divorced parents, is to engage in unwarranted speculation and to stretch judicial construction of legislation beyond its breaking point. Further, while granting the application might mitigate the harm to Appellant-wife, I believe that it would exacer*545bate the harm to Appellee-husband. Thus, “the harm to the spouses” would not be mitigated;
(4) Finally, section 102(a)(6) states that economic justice should be effectuated—not economic equality. Appellant in the instant case had the burden of persuading the trial court that allowing the action to proceed under the Divorce Code would effectuate and insure such “economic justice.” On the record before this Court, I do not believe that the trial judge abused his discretion in concluding, by implication, that Appellant failed to do so.
Thus, the criteria set out in section 102(a) do not necessarily provide either an easy or a clear-cut means of assessing the merits of a petition to proceed under the Divorce Code.
. The majority concludes that “if the application of one spouse is to be denied because of the happenstance that it is filed at a late stage of the litigation, that spouse will be punished for matrimonial wrongs.” At 696. This conclusion is palpably incorrect for several reasons. First, it is built on a faulty premise, i. e. that the court is *546“punishing” a party when it denies extraordinary relief which the court may grant, or deny upon the proper exercise of its discretion. Second, it ignores the possibility that a dilatory application may properly be denied as punishment for litigation wrongs, as opposed to marital wrongs.
. I believe that the court should consider, inter alia, whether the transfer would cause unreasonable inconvenience, vexation, harassment, expense or prejudice to any party. See e. g., Pa.R.C.P. 229(c). See n.6 supra.
. House Bill 508, introduced on February 10, 1981, provides, inter alia:
“Section 1. Section 103, act of April 2, 1980 (No. 26), known as the ‘Divorce Code,’ is amended to read:
Section 103. Construction.
The provisions of this act, so far as they are the same as those of existing laws, are intended as a continuation of such laws and not as new enactments. The provisions of this act shall apply to all cases, whether the cause for divorce or annulment arose prior or subsequent to enactment of this act. The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act, or, upon [application granted] the filing of a praecipe by either party, under the provisions of this act. The *547provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act. This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.
Section 2. This act shall take effect immediately.”
Pa.Leg. [Session of 1981], House Bill No. 508, Printer’s No. 535.
That such an amendment has been introduced clearly suggests that the Divorce Code, as enacted, does not contemplate, nor permit, the virtual pro forma grant of applications advocated by the majority.
. I have no quarrel with the majority’s conclusion that a formal ■ evidentiary hearing is not necessary where, as here, the parties stipulate to the evidence. At 690. Nor would a hearing be required if the application was unopposed.