dissenting.
I dissent from the majority opinion because I think it has rewritten the divorce law of this state based on the philosophical bent of a majority of the members of this court.
I concurred in Friedman and wrote the opinion in Marshall for the court. I would not enlarge upon those rulings as the majority has done in this case and in McCoy v. McCoy, 236 Ga. 633.
Both Friedman and Marshall are clearly distinguishable from the case under consideration. In Friedman both parties agreed in their pleadings that the marriage was irretrievably broken. In Marshall the wife’s amended complaint struck her original ground that the marriage was irretrievably broken and substituted cruel treatment but alleged that such cruel treatment made it impossible "to continue living with the defendant.” We held that such an allegation was in effect equivalent to an allegation that the marriage was irretrievably broken.
In this case the appellant merely alleged that she had separated from her husband because of his cruel treatment of her and denied that the marriage was irretrievably broken. She did not allege, as the wife in Marshall, that it was impossible to live with her husband, but only that the parties are presently separated because of her husband’s cruel treatment. Appellant here made no allegations which could be interpreted to mean that she and her husband are unable to cohabit and that there are no prospects of reconciliation.
All petitions for divorce are required to show the date *641of the parties’ separation and the statutory ground upon which a divorce is sought. Code Ann. § 30-105. An allegation that the parties are presently separated due to a fault ground under Code Ann. § 30-102 is not equivalent to an allegation that the marriage is irretrievably broken. To so hold would have the effect of repealing the fault grounds under § 30-102 where the other party alleges the marriage to be irretrievably broken.
In my opinion the trial judge erred in granting a judgment on the pleadings on the issue of divorce.
I am authorized to state that Justice Ingram concurs in this dissent.