dissenting.
I am fully in agreement with Mr. Justice Flaherty in his conclusion that there was no justification for finding a legislative intention in the Pennsylvania New Divorce Code, Act of April 2, 1980, P.L. 63, § 101 et seq., 23 P.S. § 101 et seq. (Supp.1981) (effective July 1,1980) to apply the concept that equitable distribution of property to property acquired by either spouse before the effective date of the Code. It is a fundamental principle of statutory interpretation in this Commonwealth that a statute must not be construed to be retroactive in its application unless such an intent is clearly and manifestly apparent from the language of that provision, 1 Pa.C.S.A. § 1926. The language of the Code is at best neutral in this regard. This neutrality cannot be overcome by the social philosophy of some of the members of this Court.
It is equally basic in statutory interpretation that legislation should not be interpreted in such a manner that it runs afoul of constitutional mandate. 1 Pa.C.S.A. § 1922(3); Wajert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980); Commonwealth ex rel. Dermendzin v. Myers, 397 Pa. 607, 156 A.2d 804 (1959); Tremont Twp. Sch. Dist. v. Anth. Coal Co., 364 Pa. 591, 73 A.2d 670 (1950). In my judgment, the retroactive interpretation sought to be imposed by the majority on the language of the Code renders it constitutionally infirm.
*237The Constitution of this Commonwealth in the very first article of the Declaration of Rights sets forth the “Inherent Rights of Mankind.” Therein it was provided that each resident of this Commonwealth should “have certain inherent and indefeasible rights, among which are those..., of acquiring, possessing and protecting property...”. In defining the essence of this concept, this Court early noted:
If the legislature possessed an irresponsible power over every [person’s] private estate ... all inducement to acquisition, to industry and economy would be removed. . . If the government is interdicted from taking private property even for public use without just compensation, how can the legislature take it from one [person] and dispose of it as they think fit. The great principle is, that a [person’s] property is [their] own, and that [person] shall enjoy it according to [their] pleasure (injuring no other...) until it is proved in a due process of law that it . . . belongs to another. (Emphasis added)
Ervine’s Appeal, 16 Pa. 256, 263-64 (1851)
I fully appreciate that property rights are not absolute and that the public may regulate in the common interest. PruneYard 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 *238property acquired by the other member to the relationship after the effective date of the enactment. See Willcox 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.
I, therefore, dissent.