dissenting.
I feel that the duty of this court is to determine what the law is, not to legislate theories of ownership. In my judgment, the majority opinion in this case establishes and implements property rights in this state which have not heretofore existed. With that, let us examine each of the decisions on which the majority opinion relies.
Bragg v. Bragg, 224 Ga. 294 (161 SE2d 313) (1968) — Wife sued husband for divorce. The divorce was granted to the wife and the jury made the following provisions: (a) The wife will receive no alimony; (b) Child support of $100 per child per month (emphasis supplied); (c) Chevrolet to the wife, Volkswagen to the husband; house and two lots to the husband; (d) Husband shall pay $5,000 lump sum to wife; (e) Household furnishings in possession of the wife to her, rest to husband.
This jury verdict is explainable on two theories other than that advanced by the majority. First, the wife testified as to her ownership rights in some of this property and it is the jury’s duty to sift through conflicting claims of ownership. Furthermore, any property awarded to the wife which was not hers could be considered alimony. Although the jury said “no alimony to the wife” it seems clear that what it meant was “no periodic alimony.” It could not have meant no alimony of any kind since in the very next paragraph, it awarded *774“child support” which is also termed “alimony” under our law. Code Ann. § 30-207.
McLane v. McLane, 224 Ga. 748 (164 SE2d 821) (1968) — The jury denied alimony to the wife but awarded her a sum out of a joint savings account, one of two automobiles, the equity in the home, and certain household furnishings. This court held that the evidence authorized the jury to find that that property (including money) which was awarded to the wife was her property. While the evidence showed that title to both cars was in the husband and that the wife contributed to the purchase of the Volkswagen, it should be noted that the husband affirmatively testified “My wife’s car is a 1962 Chevrolet, and mine is a 1966 Volkswagen.”
Holloway v. Holloway, 233 Ga. 631 (212 SE2d 809) (1975) —The husband was awarded half of a sum held in a savings account in the wife’s name. This court held, “We have reviewed the transcript and find there was a sufficient conflict in the evidence dealing with the ownership of these funds to authorize the jury’s verdict dividing the funds between the parties. The evidence authorized the jury to find that at least one-half of the funds belonged to the husband.” 233 Ga. 632.
Gough v. Gough, 238 Ga. 695 (235 SE2d 9) (1977) — The jury awarded $12,000 to the husband which was then “being held in trust” by the wife. She had moved the funds from a trust account to an account in her own name. This court held “The jury was attempting from the evidence, which was contradictory and confusing, to separate the property of the husband from the joint funds of the parties. They were authorized to find that the wife had deposited funds of the husband in this ‘trust’ account, and they could properly award it to him.” 238 Ga. at 696. (Emphasis supplied.)
Yarbray v. Young, 236 Ga. 784 (225 SE2d 315) (1976) — The jury awarded no alimony in cash, kind, or lump sum to the wife but gave her “exclusive use” of the home for a stated period of time. There is no indication in the opinion that the property was titled only in the name of the husband so I assume it was the property of both husband and wife. The jury is authorized to divide jointly owned property upon divorce.
Coleman v. Coleman, 240 Ga. 417 (240 SE2d 870) (1977) — In this case the husband requested “equitable property division” and consequently could not be permitted to attack on appeal the verdict granting that request.
Morris v. Morris, 242 Ga. 591 (250 SE2d 459) (1978) — The jury awarded some jointly owned property to the wife and some jointly owned property to the husband. This simply constitutes a partitioning of jointly owned property between tenants in common.
*775In addition to these decisions, the majority opinion relies on two statutes as indicating that “equitable division of property” is authorized by our law. Code Ann. § 30-105, in pertinent part states: “... The petition shall show... (6) where alimony or support or division of property is involved, the property and earnings of the parties if such is known.” (Emphasis supplied.) In my judgment, this refers to a division of property where the spouses are tenants in common. Code Ann. § 30-118 states: “The verdicts of juries disposing of the property in divorce cases shall be carried into effect by the courts, by entering up such judgment or decree, or taking such other steps usual in courts of equity, as will effectually and fully execute the same.” This statute has to do with the carrying out of verdicts of the jury in a given case awarding alimony, decreeing a trust in specific property, and so forth, but does not establish a vested remedy for obtaining such a verdict.
We have stated as recently as September 3, 1980 in the case of Hathcock v. Hathcock, 246 Ga. 233 (271 SE2d 147) (1980), the following: “We note here that a so-called ‘property settlement’ can only exist by virtue of an agreement. The only method by which a trial judge or jury can award one spouse’s property to the other spouse is by granting alimony, either periodic alimony or alimony in kind.” No judge on this court noted any objection to this valid statement of the law. Further, we have specifically held as follows:
Barnes v. Barnes, 230 Ga. 226 (196 SE2d 390) (1973) — The court held that the evidence was undisputed that each spouse owned an independent undivided one-half interest in a house and that absent a resulting trust, the jury award of the wife’s one-half interest to the husband could not be sustained.
Scales v. Scales, 235 Ga. 509 (220 SE2d 267) (1975) — Without a resulting trust, an award to the husband of a portion of the wife’s property was not authorized.
Byrd v. Byrd, 238 Ga. 569 (233 SE2d 799) (1977) (now overruled by the majority opinion). This court found the award of the wife’s property to the husband illegal despite the husband’s argument that the jury was attempting to divide the parties’ property equitably.
Lowry v. Lowry, 238 Ga. 593 (234 SE2d 509) (1977) — Without a trust, the award of the wife’s property to the husband was illegal.
Hargrett v. Hargrett, 242 Ga. 725 (251 SE2d 235) (1978) (now overruled by the majority opinion). “ ‘Property settlement’ and ‘property division’ are terms used to refer to the determination of who owns property when its title is disputed and to the partitioning of jointly owned property. [Citations omitted]. They do not create a means for awarding a husband property the title to which is in the wife.” 242 Ga. at 728.
Following the decision in Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 *776LE2d 306) (1979), our legislature re-examined the status of title of properties belonging to husband and wife and re-stated the law of Georgia as follows: Code Ann. § 53-502 “The separate property of each spouse shall remain the separate property of that spouse except as provided in Code Title 30 and except as otherwise provided by law.”1 Under the majority opinion, if I understand it correctly, any property accumulated by either spouse following marriage, except by gifts or inheritance from others could be awarded to the opposite spouse without reason, cause or justification and irrespective of the conduct of the receiving party. To that end, we do not have community property which can be divided one-half to each spouse, but we have created a procedure for hazarding the respective properties of a spouse who for any reason is not popular with a particular jury or who because of lack of judgment or liquid assets is not able to hire counsel competent to protect his or her interest. Equitable rights to accumulated properties, if they exist, surely do not exist solely when a suit for divorce is being tried. If one spouse who isn’t entitled to alimony in kind is entitled to claim property of the other based on equity then such a right surely exists at all times during the marriage relationship, and if a valid property right, would survive a spouse’s death.
In addition to the problems created in intestate as well as testate succession, where does such an indefinite holding lead? Should mortgage lenders beware in lending on properties possessed by both spouses but titled in only one name? If we are prone to legislate, we should at least consider all of the fallout from the rule the majority establishes.
I, therefore, dissent.
I am authorized to state that Justice Marshall joins in this dissent.
A bill was introduced in the legislature in 1979 to do exactly what the majority opinion now approves. This bill could not even be voted out of committee. House Bill No. 1031.