concurring in part and dissenting in part.
I concur in the result, and in all of the opinion except that part holding that the trial judge had a duty to consider the relative fault of parties in making a division of property.
The trial court awarded the divorce on the ground of irreconcilable differences, a ground added to .the former statutory grounds for divorce by the 1971 Legislature (Chap. 149, 1971 S.L., codified as subdivision 8 of Section 14-05-03 and Section 14-05-09.1, N.D.C.C.).
In Novlesky v. Novlesky, 206 N.W.2d 865 (N.D.1973), decided about 75 days before I joined the Court, former Justice Teigen, in a concurring opinion, argued that the adoption of irreconcilable differences as a ground for divorce meant that both the granting of the divorce and the division of property should be based on considerations other than fault. When I joined the Court, I accepted the majority opinion as the law. After further experience with the way Fischer (Ruff) guidelines have been applied [see my dissent in Haugeberg v. Haugeberg, 258 N.W.2d 657 (N.D.1977)], I now repent my error and suggest that the Court do likewise.
The case before us now presents a factual situation which gives us an opportunity to reconsider the question of whether the adoption of the ground of irreconcilable differences changes prior law as to the consideration of fault of the parties in connection with the division of property. The trial judge held (and I agree) that fault is not to be considered in division of property where the divorce is granted on the ground of irreconcilable differences, just as fault is not to be considered in the granting of the divorce on that ground.
The whole purpose of legislating the new ground for divorce was to “redirect the law’s attention from an unproductive assignment of blame to a search for the realities of the marital situation” [Commissioner’s Prefatory Note to Uniform Marriage and Divorce Act, 9 Uniform Laws Annot., Master Ed., p. 457]. I will not further recite the melancholy history of feigned grounds, strident name-calling and finger-pointing and mutually destructive charges of crime and misconduct which have turned our courts all too often into battlegrounds in which reputations are destroyed along *47with marriages, and children are made spectators to mutual character-assassination by their parents.
Mercifully, we now have a statute which permits the dissolution of marriage without such degradation of all concerned. But, having acknowledged that fact, we must admit that little or nothing is accomplished in a vast majority of cases if fault enters again into the courtroom when property-division, alimony, and child-custody come up. We all know that few marriages are dissolved without division of property or the granting of alimony or the awarding of child custody. The majority opinion clings to the fault concept on these matters by insisting that the trial court must consider fault whenever property-division comes up in a contested case.
The idea that fault should be considered in property-division is not a mandate of the Legislature. The Legislature provided only that
“When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, ...” Sec. 14-05-24, N.D.C.C.
The rule that fault must be considered in deciding on property division is a court-created rule, and it can be abrogated by the court. I believe it should be abrogated by the court.
The sparse legislative history of the passage of Chapter 149, 1971 Session Laws, indicates that its chief advocate was former District Judge Gefreh, who is described as saying [although we know that committee reports are summaries rather than direct quotations]:
“Irreconcilable differences could actually take care of all other grounds. . This no-fault concept is primarily for the eyes of the children. One parent should not be blamed for the divorce in the eyes of the children. In order to carry this ‘no-fault concept’, amend 14-05-24,1 distributing property in a fair manner without blaming the other. This is not absolutely necessary but would carry through with the ‘no-fault’ concept. This may create better atmosphere for couples getting back together (no need for mud-slinging) . . . ”
Another witness was Carl Peterson, an attorney for the State, who said,
“As it is now, the more dirt you throw the bigger share of property settlement you get.”
Under “Committee Discussion” the report says:
“Adds one more ground for divorce. It is really up to the judge to see that the necessary arrangements are made. . The Committee felt that this just eliminates the manufactured excuse and will protect the children from thinking one of the parents is to blame, which is damaging to children. . . . ”
From this I conclude that the Legislature intended to eliminate fault from the division of property as well as from the granting of divorces on the ground of irreconcilable differences.
. This was not done.