concurring.
The opinion of Mr. Justice Hutchinson accurately frames the issue as being “whether the equitable distribution provisions of the 1980 Divorce Code [Act of April 2, 1980, P.L. 63, No. 26, § 101 et seq., 23 P.S. § 101 et seq. (Supp.1983-84) (“Code”) ] may be applied to real estate transferred by one spouse prior to [the] enactment of the Code, where the other spouse, who never had an interest therein, now seeks its inclusion as marital property.” (p. 376) That opinion also correctly concludes that a finding of the applicability of section 403(d) of the Code to this property would offend due process. My concern arises from the analysis which attempts to distinguish the majority view expressed in Bac*389chetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982) rather than candidly acknowledge the error of that decision. Such an approach will invite a series of future lawsuits requiring the development of further distinctions of the Bacchetta principle until it becomes evident that view was ill-advised ab initio. The error of the majority in Bacchetta, if not initially recognized, should now be evident and acknowledged.
I
In Bacchetta a majority of this Court held that the equitable distribution requirement of the Code would not be limited to marital property acquired after the effective date of that enactment. Over the strong dissent of three members of this Court the majority justified this grant of retroactivity, although the language of the Code did not expressly mandate it, by arguing:
Where, as here and in most cases for years to come, the parties were married before the enactment of the Divorce Code, it would be unreasonable to interpret the Divorce Code as providing for equitable distribution of that property acquired after the Code’s effective date.
498 Pa. at 231, 445 A.2d 1196.
The majority’s impatience to satisfy the newly perceived concept of fairness between parties in a marital relationship ignored the unfairness to the spouse who was being divested of property rights that had vested under prior law, without due process. As cogently noted by Mr. Justice Flaherty, joined by Mr. Justice Larsen:
By construing the Code as rendering such prior-acquired property subject to equitable distribution, thereby according 23 P.S. § 401(d) — (f) a retroactive rather than merely prospective effect, vested property rights existing before the Code’s effective date could be abrogated by a court decree transferring property unconditionally owned by one spouse to the sole ownership of the other. Likewise, a spouse’s interest as a joint tenant, or tenant by the entirety, could be extinguished by being transferred to *390the other spouse. Prior to the Code’s effective date, the statutory and common law of the Commonwealth governed the status of spouses’ assets upon divorce. Hence, propertied spouses seeking to protect assets against loss upon divorce relied upon the expectation that property would remain as it had been legally titled. (Citation omitted)
498 Pa. at 240, 445 A.2d at 1201.
II
Today the consequences of Bacchetta have been avoided by the recognition of the due process rights of bona fide third party transferees. Nonetheless this Court has still refused to recognize the right of due process to a spouse in such a situation. The retroactive application of a concept of “marital property” which results in divesting vested property rights of one of the spouses in favor of the other is counter to the very heart of our notions of due process.
As I attempted to emphasize in my dissent in Bacchetta, 498 Pa. at 236, 445 A.2d at 1199, my quarrel is not with the adoption of a concept of “marital property” or any other legislative judgment designed to adjust more equitably the status of spouses. Rather it is directed at judicial intrusion which accelerates a scheme in such a fashion that clearly offends traditional notions of due process.1
*391Ill
The uniqueness of the marital relationship justifies special responsibilities and obligations to be borne by those who choose to enter that state. However, it must also be remembered that one can only enter into such a relationship voluntarily if he is apprised of the consequences of such a decision. From time to time it is to be expected that there must be a reassessment of those responsibilities and obligations to accommodate ever occurring societal change. The Code as drafted by the General Assembly reflects a proper response to such a reassessment.2 Unfortunately, by judicial interpretation a retroactive application was engrafted which improvidently transformed a reasonable accommodation into an impermissible derogation of fundamental individual rights. Today we had the opportunity to acknowledge that error and we have failed to seize it.
. I fully appreciate that property rights are not absolute and that the public may regulate in the common interest. Prune Yard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). However, that regulation must be in conformity with due process.
The relation of husband and wife is ... formed subject to the power of the state to control and regulate both that relation and the property rights directly connected with it; by such legislation as does not violate those fundamental principles which have been established for the protection of private and personal rights against illegal interference.
Executors v. Kilgore, 145 U.S. 487, 491, 12 S.Ct. 943, 944, 36 L.Ed. 786 (1892)
The admittedly serious concern that a party to a failing marriage not be unjustly treated in the dissolution of the relationship may be addressed by providing alimony, support and maintenance. Legislation may also be enacted providing for a common ownership by a present or future spouse in property acquired by the other member to *391the relationship after the effective date of the enactment. See Wilcox v. Penn Mutual Life Insurance Co., 357 Pa. 581, 55 A.2d 521 (1947). There is no question that due process, as we have defined it, permits a remedy against a potential injustice to an ill-treated spouse.
The constitutional concern is raised by an attempt to retroactively divest vested property rights of one of the spouses in favor of the other. Regardless of the laudatory purposes sought to be achieved, such a means offends well recognized constitutional mandates. Where one voluntarily enters into a marital relationship and is aware that such a step may affect ownership in property acquired thereafter, the decision to undertake such a step is a knowing and voluntary one. Here the retroactive application forces an involuntary divestment of property rights without due process of law. Bacchetta v. Bacchetta, 498 Pa. 227, 237-238, 445 A.2d 1194, 1199-1200, (1982) (Nix, J. dissenting).
. Viewed prospectively the "marital property” concept would apply to marital property acquired after the effective date of the Code. Thus, those contemplating marriage would be aware of their position, and property acquired by persons presently married after the Act’s effective date will be acquired under circumstances where the spouses are aware of the consequences of such an acquisition.