concurring specially.
I concur in the judgment not because I think it is right but because it is based on case law decided by a majority of this court and I am bound by it. This court now holds that the mere assertion by one of the parties to a marriage that the marriage is irretrievably broken is sufficient not-just to authorize, but to require the grant of a divorce.
Obviously, I think the court has gone too far in giving expression to this ground of divorce. Without repeating what I have said in previous dissents in these cases, I feel I must point out that the result in this case classically illustrates how generally beneficent legislation can be distorted beyond all reasonable intendment by judicial construction. Perhaps I am wrong, but I thought the primary purpose behind the addition of the no-fault ground for divorce was to cleanse our divorce law of the hypocrisy we previously indulged in the use of cruel treatment as a ground for divorce by parties who wanted a quiet, decent and friendly termination of their marriage without attacking one another in the process.
In other words, I see the use of the no-fault ground as a good and honest solution for ending a marriage where both parties agree it is finished, and in cases where one of the parties asserts the marriage is over and the other tacitly admits it by failing to contest it. What I find difficult to accept is this court’s implicit holding that there can never be any serious judicial inquiry about prospects for reconciliation.1 To my mind, this encourages divorce *751and is inconsistent with the state’s traditional, and I think wise, policy of encouraging efforts toward resolution of domestic disputes through reconciliation and continuation of the marriage, particularly where there are children.
I do not believe that anyone could reasonably foresee that the addition of the no-fault ground for divorce by the legislature would lead this court to deny a party the opportunity to have this issue presented to a jury in a proper case. But, it has happened in this case. In effect, this court holds here that where one party says there are no prospects for reconciliation and the other one says there are, the court has no alternative except to grant a divorce. This is too cold and hard for me to accept because the message it conveys is that our society has no interest in preserving marriages, but, on the contrary, encourages one of the parties to end it quickly and officially on the slightest caprice by merely asserting the marriage is irretrievably broken and without ever appearing in court to prove it. I see little difference between this and permitting one of the parties to write "Canceled” on the marriage license and mail it in to the judge of the probate court. If we have come to that, then I think the legislature ought to say so in plain and unmistakable language.
The judgment we have previously required trial judges to use in deciding these cases has been removed from them. I cannot agree this was intended merely by adding the no fault ground, but I concur in the judgment in this case as our decisions require it.
Intellectual candor compels me to note that the present decision by this court seems to fit an existing trend in divorce law. There is evidence of "the diminishing willingness of the state(s) to be involved in the matter of marriage termination” as a corollary to the *751states’ "gradual divestment of its marriage regulation business.” Marriage and The States: The Withering Away of Marriage, Professor Mary Ann Glendon, Virginia Law Review, Vol. 62, May, 1976, No. 4, pp. 703-706. Even so, I maintain that this is such a fundamental issue of profound public importance that it should be decided in the General Assembly rather than in this court on a case by case basis.