I dissent.
The California Legislature took a giant leap forward in the field of domestic relations with adoption of the Family Law Act, operative as of January 1, 1970. Regrettably my colleagues in the majority take a step backward as they judicially legislate potentially burdensome requirements not contained in the statute.
There is not a scintilla of authority contained either explicitly or implicitly within the Family Law Act for the fiat that, in the absence of “exceptional circumstances,” the trial courts of this state “must require the petitioner to appear personally and testify at the hearing.” (Italics added; ante, p. 682.) Indeed, reflection upon the inexorable beneficent trend of the law in the divorce field leads to a contrary conclusion.
Traditionally, divorce could be granted to an aggrieved marital partner only upon a showing of the exclusive fault of the other partner. Indeed, prior to 1952, if both husband and wife established that the other committed egregious acts proscribed by the Civil Code, neither could obtain a legal termination of the marriage. To prevail, an applicant had to be “without reproach.’’ (Conant v. Conant (1858) 10 Cal. 249, 258.) The incongruous compulsion upon two offending parties to retain their mutually intolerable marital status was finally eliminated in De Burgh v. De Burgh (1952) 39 Cal.2d 858 [250 P.2d 598], which wisely recognized that the considerations justifying a divorce “when one spouse has been guilty of misconduct are often doubly present when both spouses have been guilty.” (Id. at p. 864.) With that decision the defense of recrimination, for all practical purposes, became moribund, and a faint ray of rationality illumined the field of domestic relations.
However, the concept of fault as the essential element in divorce actions lingered on, even in cases involving no issue of child custody and cases in *684which the defendant defaulted and thus impliedly admitted the allegations of the complaint. Every day, in every superior court in the state, the same melancholy charade was played: the “innocent” spouse, generally the wife, would take the stand and, to the accompanying cacophony of sobbing and nose-blowing, testify under the deft guidance of an attorney to the spousal conduct that she deemed “cruel.”
Universal disenchantment with the demeaning nature of this command performance, and with the rule that demonstrable fault is necessary to terminate the marriage relationship, led to extensive legislative studies and ultimately to adoption of the Family Law Act.
The foregoing is the background against which are silhouetted the provisions of the current law permitting dissolution of marriage when the trial court determines there are “irreconcilable differences, which have caused the irremediable breakdown of the marriage.” (Civ. Code, § 4506.) Irreconcilable differences are broadly defined as those which the court determines “to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” (Civ. Code, § 4507.) Seldom have code provisions given trial courts less definitive direction; this tolerance, I suggest, was deliberate and is desirable in a field as volatile as proceedings for termination of the marital status.
At the outset of their discussion the majority concede that “Neither the Family Law Act nor the Family Law Rules adopted by the Judicial Council pursuant to the act expressly require the personal appearance and testimony of the petitioner or expressly forbid proof of irreconcilable differences by testimony of a respondent.” (Fn. omitted; ante, p. 678.) Despite this concession, however, the majority proceed to legislate the precise requirement omitted by the Legislature and the Judicial Council.
The majority also concede that the “former law did not forbid the granting of a divorce to an absent plaintiff.” (Ante, p. 681.) Then, inexplicably, under the present advanced law they hold the trial courts “must require the petitioner to appear personally and testify at the hearing” except under undefined “exceptional circumstances.” (Italics added; ante, p. 682.) This is exalting form over substance. It results in retrogression, and frustrates the empathetic approach to domestic relations which the Legislature anticipated in the new Family Law Act.
Finally, the majority concede that “Nothing in the Family Law Act or the Family Law Rules suggests that the default of a party affects his competence as a witness or the admissibility of his testimony as to any issue of which he has knowledge.” (Ante, p. 681.) Yet the majority hold that the testimony of such a witness is admissible in lieu of the petitioner’s *685testimony or affidavit only in undefined “exceptional cases.” (Ante, p. 682.) Again, there is no legislative authority for this restriction.
The fundamental error of the majority is in looking backward to the old divorce practice. Because trial judges previously as a matter of policy (ante, p. 681) required the plaintiff to appear personally and testify in court, the majority can see nothing in the new law that “suggests an intention to depart from the former practice” (ante, p. 682). This, of course, completely disregards the above-described innovative spirit and intent of the Family Law Act, as well as the precise language of new Civil Code section 4511, which significantly departs from the previous law (§ 130) in providing that “No decree of dissolution can be granted upon the default of one of the parties . . . but the court must . . . require proof of the grounds alleged, and such proof, if not taken before the court, shall be by affidavit.” (Italics added.) What the Legislature clearly intended was that the trial court shall hold a hearing, but that proof of the parties’ irreconcilable differences, if not presented before the court by in-person testimony, shall be by affidavit. There is no reference to unusual circumstances or to compulsory attendance by the petitioning party. The specific provision for permissible proof by affidavit indicates just the contrary.
As I see it, there are six sets of circumstances most likely to occur in the context of dissolution proceedings where there is no issue of child custody. Assume for ease of consideration that in each of the following factual illustrations the petitioner is the wife and the respondent is the husband who has defaulted.
1. The wife appears and testifies. The court is satisfied from her testimony that there are irreconcilable differences and that the marriage should be dissolved. No problem appears and the decree should be granted.
2. The wife appears and testifies. The court is not satisfied from her testimony that there are irreconcilable differences. The court may then require further testimony from the wife, from the defaulting husband after issuing a subpoena for his appearance, or from other witnesses, in whatever manner it deems appropriate.
3. The wife does not appear at the hearing. The defaulting husband appears and testifies. The court is satisfied from his testimony that there are irreconcilable differences. In such circumstances the court may properly grant the decree.
4. The wife does not appear. The defaulting husband appears and testifies. The court is not satisfied from his testimony that there are irreconcilable differences. The court reaches that conclusion, however, not *686because of a predetermined policy of arbitrarily denying a decree in the absence of the petitioner, but solely because the proof in this instance is inadequate. The court may then require further evidence from the wife or from other witnesses.
5. Neither the wife nor husband appears. Other competent percipient witnesses appear and testify, e.g., adult children, parents, close relatives. If the court is satisfied from the nature and extent of the testimony that there are indeed irreconcilable differences, the court may grant the decree. If the court is not satisfied, it may require further evidence.
6. Neither the wife nor husband appears personally at the hearing, and the matter is submitted solely on affidavits. In that event the court should require some additional personal testimony in order to reach a considered conclusion that a dissolution of the marriage is proper. On the other hand, if the trial court makes a finding of unusual circumstances—e.g., the wife is confined to a hospital, the husband is in custody—it may waive proof ordinarily “taken before the court” and grant a decree of dissolution predicated on adequate affidavits. (Civ. Code, § 4511.)
As indicated in all of the foregoing six hypothetical circumstances, I would permit the trial court to determine the type and quality of testimony required, with the only caveat being that consideration must be given to each case individually, not circumscribed by predetermined policy. If satisfied by the presentation, regardless of the statutorily permissible manner in which it is made, the trial judge should be permitted to make a finding that irreconcilable differences prevail and to render an interlocutory decree determining that the marriage is dissolved. It is not appropriate for this court to encompass trial judges in procedural straitjackets not contemplated by the Legislature.1
I would reverse the judgment and direct the trial court to determine the merits of the petition on the evidence already submitted.
Tobriner, J., concurred.
Rule 1249, adopted by the Judicial Council, provides: “In the exercise of the court’s jurisdiction pursuant to the Family Law Act, if the course of proceeding is not specifically indicated by statute or these rules, any suitable process or mode of proceeding may be adopted by the court which appears conformable to the spirit of the Family Law Act and these rules.” (Italics added.) It is clear from reading preceding and following rules that the Judicial Council was speaking of trial courts, not the Supreme Court.