Dual Fault Divorce in Tennessee:

The Thomasson Case

and the New Statute

 

I.  Introduction

 

            In a divorce proceeding brought under traditional fault-based statutes, a husband and wife may each prove a ground for divorce to which the other spouse has no defense.  Both are at fault; yet under the language of the statutes, each may be entitled to a divorce.  Some states' courts, however, under precedents drawing on English ecclesiastical law, have held the legal fault of each spouse a common-law defense to the misconduct of the other, thus denying a divorce to either party.  In the few states where this rule of recrimination is still applied, the doctrine often results in legal continuation of a dead marriage which both parties want dissolved.

            Tennessee had long been one of the states applying common-law recrimination, although recent supreme court decisions seemed to narrow its application.  After a bill to authorize dual fault divorce failed in the General Assembly, however, the Tennessee Supreme Court held in 1988 in Thomasson v. Thomasson that for the court to abolish the rule would amount to judicial legislation.  The court's refusal led to legislative action; and Tennessee Code Annotated section 36-4-129 was enacted in 1989.  This new statute permits a declaration of divorce when either or both parties are entitled to a divorce.  The statute also permits a grant of divorce to the party who was less at fault.

            Section II of this note explores the historical development of divorce actions from ancient Roman times through the nineteenth century.  Section III deals with the development of divorce actions in the United States and specifically in Tennessee.  In section IV, the recent Tennessee Supreme Court decision of Thomasson v. Thomasson is examined in detail.  Section V discusses recent Tennessee legislation drafted in response to the Thomasson decision.  Finally, section VI raises questions left unanswered by the Tennessee legislation.

 

II.  Historical Background

 

            The doctrine of recrimination, from the Latin recriminari, to accuse in turn, governs situations in which both spouses have grounds for divorce, but neither may be granted a decree.[1]  Recrimination in Roman law, however, was not used to prevent divorce; it was only used to adjust the property rights of the parties after divorce.[2]  Divorce itself in the imperial period could be had without any judicial intervention at all, either by mutual consent (divortium), or by the will of either of the partners (repudium).[3]  Yet, the custom for the wife's family to provide her with a desirable dowry resulted in a degree of control by the husband over the wife's property and a commingling of her property with his.  The increased frequency of divorce during the Imperial Period prompted the development of a judicial action to allow the wife to recover all or a part of her dowry, depending upon whether she was at fault and upon other equitable considerations.[4]  Eventually, a “gift for the sake of marriage” made by the husband, similar to a dowry payment, became customary; and it too was subject to forfeiture for marital misconduct.[5]  In these property settlement proceedings after divorce, the parties were allowed to recriminate: to offset equal fault so that neither suffered forfeiture.[6]

            Similarly, Jewish law did not use recrimination to block divorce.  The earliest statement of the Jewish law of divorce indicates that the husband might divorce the wife because he “finds something obnoxious about her,”[7] by writing her a bill of divorce, putting it in her hand, and sending her out of his house.  The potential harshness of this law is somewhat mitigated by the rules regarding Jewish betrothals, still observed within the Conservative and Orthodox traditions.  A Jewish betrothal has for thousands of years been a contractual arrangement, customarily reduced to writing, (the ketubbah), in which the financial obligations of the parties, including a sum for liquidated damages for breach without cause, are prescribed in advance of the wedding.[8]  “The ketubbah was instituted for the purpose of protecting the woman, 'so that he shall not regard it as easy to divorce her.'”[9]

            It was against this legal background that Jesus of Nazareth preached against divorce.  In a society where adultery was squarely prohibited in the Ten Commandments[10] and carried severe penalties, including the death sentence when a married woman was involved,[11] Jesus tried to discourage divorce by characterizing nearly every variety of second marriage as adulterous.  In his view, any man divorcing a wife except on grounds of her adultery[12] drove her into adultery[13] and became an adulterer himself upon remarriage.[14]  Also, any man who married a divorced woman was deemed to be an adulterer.[15]  Lastly, any woman who divorced her husband and remarried was an adulteress.[16]

            This view of divorce was so much more strict than prevailing law that the Pharisees tried to discredit Jesus for contradicting the law of Moses; yet Jesus characterized the law of Moses as a concession to the hardhearted in this regard.[17]  Jesus' unusually stringent view on divorce was even questioned by his own disciples, who said: “[i]f such is the case of a man with his wife, it is not expedient to marry.”[18]  In reply, Jesus issued an important limitation to his proscription: “[n]ot all men can receive this precept, but only those to whom it is given.  For ... there are eunuchs who have made themselves eunuchs for the sake of the kingdom of heaven.  He who is able to receive this, let him receive it.”[19]  Jesus thus set a spiritual goal for his followers but did not insist on a change in the civil law.

            Nevertheless, under the influence of St. Paul[20] and other early theologians of the Christian Church, absolute indissolubility of marriage became the official doctrine.[21]  Yet early Church Fathers, not able to enforce proscriptions on divorce and remarriage under Roman law, could only threaten excommunication.[22]  This situation began to change under the Christian Emperor Constantine, who during his reign from 324-337 A.D. established the exact grounds required for one spouse to repudiate the other.[23]  The Emperor Theodosius in 449 A.D. established forfeiture of either the wife's dowry or the husband's nuptial gift by the repudiating party for other than the listed causes established by Constantine.[24]  During the reign of the Emperor Justinian from 527-565 A.D., consensual divorce was finally forbidden.  Those divorcing by mere mutual consent were imprisoned for life in a monastery or convent until they desired to reestablish their marriage.[25]  After Justinian's death, however, Justinian II revoked this prohibition, explaining that it was impossible to enforce and that his subjects had to be able to free themselves from bad marriages.  For divorce without mutual consent, the necessity for showing just cause remained in effect.[26]

            With the gradual division of the Roman Empire and the decline of the Emperor's authority in the West, the legal machinery that had protected a wife's property interests withered away.  The Pope of the See of Rome gained control of the ecclesiastical courts throughout much of Europe, and thereby gained final authority on the Continent over marriage, which had become increasingly sacramental in nature.  In England, divorce under Anglo-Saxon law—although possible by mutual consent—had always been the husband's prerogative, restrained only by his fear of starting a feud or incurring financial loss.[27]  By the tenth or eleventh century, however, the Church in England began to assert its canonical law on divorce effectively.[28]  The Church could thus protect the wife's interests by denying the husband the right to remarry.[29]  By the twelfth century, the ecclesiastical courts administering the canon law had undisputed jurisdiction over marriage and divorce.[30]

            Eventually, absolute divorce for any reason, whether by consent or for cause, was absolutely forbidden in England.  Even adultery, the one ground for divorce permitted by the teachings of Jesus, could now only result in judicial separation, or divorce a mensa et thoro, from bed and board.[31]  To a charge of adultery, the wife was allowed under canon law to recriminate: to show that her husband was guilty of the same offense, even if subsequent to her own, and therefore could not deny her consortium.[32]  Thus an equally guilty husband had the choice of resuming cohabitation or providing the wife with separate maintenance.[33]

            Where the desire to divorce was mutual, however, annulment was available to evade the prohibition, if the parties discovered either that they were related to each other in a prohibited degree or that one of them had “held wicked intercourse with a near relation of the other” before marriage.[34]  One might expect a general loosening of the divorce prohibition after the break between the Church of England and the Church of Rome over the issue of Henry VIII's divorce from Catherine of Aragon.  The ascent of pro-Catholic Mary Tudor to the throne, however, reversed even the trend to consider divorce a mensa et thoro as giving the parties the right to remarry.  The absolute prohibition of divorce remained the law in England until 1857.[35]

            In the late seventeenth century, Parliament began to grant individuals absolute divorce by legislative act after the parties had first been divorced a mensa et thoro by an ecclesiastical court on the ground of adultery.[36]  In these “suits,” Parliament was not bound by ecclesiastical law, and so was able to conclude from the very first of these cases, in 1697, that “[i]t might be for the best interests of both society and the parties involved, that a divorce be granted even where both parties were to some extent responsible for it; but it did not follow that the guilty petitioner should profit by his wrongs any more than it did that the wife alone should be punished for hers.”[37]  Thus, because the results obtained were found to be essentially just, Parliament would allow any of the old canon law defenses (including recrimination) that were applicable to the consideration of property rights.[38]

 

III.  Historical Development of Divorce Actions

in America and in Tennessee

 

            Because there were no ecclesiastical courts in the American colonies, where the Protestant tradition predominated, divorce in America has been statutory in nature from the beginning.  Divorce in the early history of the colonies was infrequent and was granted either by the governor or, more commonly, by the legislature.[39]  The rising demand for divorce quickly became a nuisance to the legislatures and, accordingly, provision was made for judicial divorce.[40]  The question then arose as to what extent the existing English common law on divorce was to be applied in the construction of the American statutes.  In some states, certain of the defenses developed by the English ecclesiastical courts were themselves adopted by statute.[41]

            In Tennessee, divorce was purely legislative until the Act of 1799 authorized judicial divorce.[42]  The legislature retained concurrent jurisdiction over divorce until 1836, when a constitutional amendment removed divorce jurisdiction from the legislature.  The amendment expressly authorized the legislature to grant courts the power to decree divorces upon causes specified by laws general and uniform in their operation throughout the state.[43]  The General Assembly that same year enacted the predecessor to most of Tennessee's current divorce and alimony provisions, incorporating earlier provisions from the Acts of 1799 and 1819.[44]  This act included a section adopting the old ecclesiastical defenses to divorce sought on the ground of adultery—recrimination, condonation, and connivance[45]—and also included a section allowing the defense of provocation, or justifiable cause, to divorce on grounds of cruelty, indignities, or abandonment and nonsupport.[46]  When the husband was the successful plaintiff, another statute (which also dated from the 1836 Act) divested the divorced wife of all rights to dower in the complainant's real estate, all rights to a distributive share in his intestate personalty, and all rights to alimony.[47]

            In the decades immediately following the passage of these acts, many trial courts began to grant divorces rather freely, while others showed a marked skepticism toward the acts of the General Assembly authorizing divorce.  As early as 1855, in Shell v. Shell,[48] the Tennessee Supreme Court expressed concern that the 1841 Act, allowing absolute divorce on the new and vague causes of cruelty, indignities, and abandonment and nonsupport, was crowding the courts with applications.  The court in that early opinion acknowledged the public policy argument for absolute divorce and “presumed that the views of a majority of our citizens are embodied in our legislation.”[49]  The justices were determined, however, to limit divorce to those admittedly many cases where the strong language of the statute was indeed satisfied, preferring in all others to encourage reconciliation through denying a decree.[50]  As a further barrier, the court added a stringent “clean hands” requirement in divorce actions, as evidenced by the 1865 case of Cameron v. Cameron,[51] in which the court held that a plaintiff who had established adultery by the defendant must nonetheless prove his own virtue and chastity or suffer dismissal.[52]  Even as late as 1871, in the case of Lanier v. Lanier,[53] the supreme court was still expressing its doubt of “the policy of our statutes in allowing so many causes of divorce not prescribed by the great Author of Marriage,” but nevertheless deferred to the power of the legislature under the state constitution and found for the plaintiff.[54]  In a particularly vehement dissent, Justice Turney called the Bible the supreme law, which he wanted to be followed without regard for the acts of the legislature.[55]

            By the time of Moore v. Moore[56] in 1899, the supreme court appears to have stopped complaining of the divorce statutes and to have begun instead to avail itself of the ecclesiastical defenses, both from the English decisions and the Tennessee statute, to arrive at its idea of justice in hard cases.  The Moore decision, which denied a divorce to a husband who had abandoned his pregnant wife yet sued on the ground of her subsequent adultery, may be the first reported supreme court application of common-law recrimination outside the strict language of Tennessee Code Annotated section 36-4-112.[57]  One year later, in McLanahan v. McLanahan,[58] the supreme court cited English cases in deciding that condonation,[59] a statutory defense to adultery, would not be strictly applied in cases brought on the ground of cruelty, and found that absolute divorce in that case was “in the interest of well-ordered society, of the wife, and of the moral future of the children.”[60]  The growing willingness of the supreme court to allow divorce was further demonstrated in Lingner v. Lingner,[61] in which the court approved a trial court's discretionary grant of absolute divorce when the pleadings prayed only for divorce from bed and board.  The court reasoned that when reconciliation is impossible the law should not consign the parties to marital limbo.

            Yet Tennessee courts, in the exercise of their discretion, had to be mindful of the financial, as well as the legal consequences of a divorce decree.  The early divorce acts specified that if a divorce was granted to the husband, the wife would forfeit not only any of her rights in the husband's property but also her right to support (alimony), while the husband would retain the rights to the wife's own property which he had enjoyed under coverture, just as though the marriage had continued.[62]  This statutory regimen was rightly interpreted by the supreme court in 1870 as displaying the legislature's “obvious intention ... to punish her as the guilty party ... where the marriage is dissolved at the husband's instance.”[63]  When the marriage was dissolved at the wife's instance, however, her remedies under the same article of the Code of 1858 were the mandatory recovery of her own property from coverture of the husband, “suitable support and maintenance of the complainant and her children” by the husband or out of his property as the court may decree, and “such part of the husband's real and personal estate” as the court might think proper.[64]  In construing this permissive language in the 1922 case of Williams v. Williams,[65] the supreme court—while acknowledging that “the right to alimony must be found in the statutes”—held that the court had “access to the ecclesiastical law and the decisions of courts of law and equity in arriving at a proper interpretation of the statutes.”[66]

            The sex-differentiated, fault-based origin of Tennessee's provisions for post-divorce relief, combined with the multiplicity of divorce grounds and applicable defenses, continued to create complications for the state's courts.  In the 1943 case of Brewies v. Brewies,[67] a husband who was granted a divorce on the ground of the wife's cruel and inhuman treatment nonetheless appealed because the trial judge had also awarded the wife alimony, based on a decree of divorce granted to his wife in the same judgment.  The husband argued that granting a divorce to him precluded granting a divorce to her.  The wife, who had prayed only for alimony and divorce from bed and board, also appealed the decree below of absolute divorce.  The court of appeals, noting that each action had been brought under the statute to which the defense of justifiable cause applied, found it incredible that the trial court had found the wife to be guilty of such cruelty as to make cohabitation impossible, while at the same time the husband had been guilty for leaving under the circumstances.[68]  The court of appeals could have vacated the judgment and remanded the case to the trial court,[69] but the court “preferred to consider the case on its merits”[70] and decided after its own finding of fact that neither party was entitled to a divorce, though the husband would be required to pay maintenance to the wife.[71]

            The exact finding of fact in Brewies cannot be gleaned from the reported case, because the finding was merely summarized by the reporter.  The court might have arrived at its result by an application of the statutory defenses.  In view of the court's extensive quotation from two legal encyclopedias on the subject of common-law recrimination as a bar to divorce when both parties are entitled to a decree,[72] however, it appears that the court of appeals decided that to be entitled to the extreme one-sided relief mandated by the 150-year-old Tennessee statutory scheme, the party granted a divorce must be legally innocent, not merely equally guilty.

            This conclusion as to the basic policy of the state was cited as accurate by the supreme court in 1955 in Brown v. Brown,[73] in which a complainant husband who was granted the divorce below successfully appealed an award of alimony to the guilty wife.  The Brown court, while expressing concern that the results of the state's policy might be harsh or even unwise, held the trial court's action to be unauthorized and in clear contravention to the statute.[74]  In that same year, the court of appeals in Schwalb v. Schwalb[75] also cited Brewies for the general proposition that fault of both parties could annul the right of either to a divorce, although such conduct, to be effective as a defense, must be such as would have constituted independent grounds for divorce.

            By the time of the 1968 case of Canning v. Canning,[76] the Brewies importation of a generalized recriminatory defense to divorce on any grounds had gained wide acceptance.  In Canning, a majority of the court of appeals concluded that the admitted adultery of a complainant was a complete bar to his right to a divorce on his alleged grounds of cruel and inhuman treatment,[77] and that even defendant's own adultery would not have destroyed her defense.  The next year, however, in Akins v. Akins,[78] the court of appeals explained that divorce would still be properly granted even if both parties were to some extent at fault, as long as the “acts of misconduct on the part of the petitioning spouse are not such as to entitle the defending spouse to a divorce or to constitute a defense to the action because of recrimination.”[79]

            The unusual 1977 case of Chastain v. Chastain[80] appeared to signal a supreme court reversal of the extension of a generalized recriminatory defense to divorce, and was so reported by several commentators.[81]  In Chastain, the defendant husband had abandoned the plaintiff wife and refused or neglected to provide for her.  Although the defendant husband interposed no defense or countercomplaint, the judge dismissed the plaintiff wife's suit sua sponte on grounds of the wife's adultery subsequent to the abandonment.[82]  The court of appeals affirmed the dismissal, but the supreme court reversed and remanded the case for a new trial.[83]  The majority opinion stated that both the grounds for divorce and the available defenses are purely statutory in Tennessee, that there is no common law of divorce, and that—except for fraud and deceit on the court—“clean hands” was not a defense in Tennessee divorce litigation.[84]  The majority also held that recrimination would be allowed as a defense only to the ground of adultery, as specified in the statute, and that the justifiable cause statute was not truly recriminatory.  The statute provided a defense only to the grounds for divorce specified therein and even then, only when the ill conduct preceded and justifiably caused the conduct complained of.[85]  Because the adultery of the wife in Chastain could not have been a justifiable cause of the husband's abandonment, it did not bar her suit for divorce on that ground.[86]

            Seven years later, in the 1984 case of Fox v. Fox,[87] the supreme court was able again to allow a divorce by confining defenses to those in the statute.  The parties had been separated for seven years when the husband filed for divorce on grounds of cruel and inhuman treatment.  The wife denied the husband's charges and counterclaimed for divorce on like grounds.  At trial, both parties amended their pleadings to include the additional ground of adultery and the defense of recrimination.  Adultery was admitted and established on both sides; but the trial court also found the wife, but not the husband, guilty on the original ground of cruelty, and granted him the divorce.[88]  The wife appealed, contending that once there is proof of adultery by both parties, neither is entitled to a divorce.  The supreme court held, however, that recrimination merely deprived both parties of a divorce for adultery.[89]  Because the husband was found to have proved another ground for divorce to which the wife had no defense, whereas the wife had not proved another ground, the husband was held entitled to a divorce.

 

                 IV.  Thomasson v. ThomassonThe Last Straw?

 

            The Thomassons had been married for 18 years at the time of their divorce suit and had two minor children.  The husband lost his job in 1981.  He remained unemployed for a six-month period, during which time the wife worked.  In 1982, the wife entered full-time employment as an interior decorator, working long hours but achieving recognition and take home earnings averaging $20,500 per year.[90]  The husband complained that the wife began to neglect the family and underwent a personality change in 1984 that accompanied her success.  The wife complained that the husband always dominated and criticized her, destroying her self-esteem.[91]

            In January or February of 1985, the wife began an affair with a man with whom she had a business relationship.[92]  In July of 1985, with the wife's adultery still undiscovered,[93] the husband slapped her during a quarrel.[94]  The wife claimed that the husband raped her on September 2, 1985, and that she considered herself separated from him from that date forward, although she gave the husband no notice and remained in the marital home for over two months thereafter.[95]

            On November 8, 1985, the wife announced to the husband that she wanted a divorce in order to marry a mutual friend with whom she had had sexual relations three days earlier.[96]  The husband at first declined to consent; but after ten days, during which there was much discord between the couple,[97] the husband filed for divorce on grounds of adultery, cruel and inhuman treatment, and irreconcilable differences.  The wife filed a counterclaim for divorce on grounds of cruel and inhuman treatment, and irreconcilable differences.[98]

            The trial court, overlooking the wife's first and uncondoned adultery, found that the wife had been good and faithful until September 2, 1985, that her case for cruelty matured and separation occurred on that day, and that her subsequent adultery in November did not bar her action for divorce on grounds of cruel and inhuman treatment.[99]  Divorce was granted to the wife and the husband's complaint dismissed.  The Tennessee Court of Appeals affirmed.[100]  The Tennessee Supreme Court, however, granted permission for the Thomasson husband to appeal “because neither of the courts below recognized in any way that Wife's own proof established Husband's cause of action for divorce on the ground of adultery, to which there was no defense under the pleadings, the proof or the law applicable to this case.”[101]

            In reviewing the Thomasson case, the Tennessee Supreme Court held that because the courts below completely overlooked undisputed material facts, the court would not be bound by the concurrent finding rule.[102]  The court then reversed the grant of divorce to the wife and held that when a husband has proven a cause of action for divorce to which the wife is without a valid defense and wife has proven a cause of action for divorce to which husband is without a valid defense, the court cannot award a divorce to either party and their respective suits must be dismissed.

    The court first noted that neither party to the case had filed an answer before trial commenced, and cautioned that “no contested divorce case should be tried until the parties have filed answers asserting the defenses they intend to rely on.”[103]  Although the trial court had granted a motion to conform the pleadings to the proof presented during the trial, neither side filed amended pleadings after the trial.[104]  Nonetheless, the court assumed that under Tennessee Code Annotated section 36-4-120, the wife pled the defense of cruel and inhuman treatment as a preceding and justifiable cause of her adultery and that the husband pled the defense of adultery as misconduct justifying his cruel and inhuman treatment of the wife, pursuant to the same statute.[105]

            Dealing first with the wife's assumed defense, the court said its decision in Chastain v. Chastain[106] established that the statutory defense of justifiable cause is not available when the ground for divorce is adultery,[107] and that the only defenses to adultery pled and proved are the four listed in Tennessee Code Annotated section 36-4-112, the principal one being that the plaintiff charging adultery has also been guilty of adultery.[108]  Because the Thomasson husband alleged and proved adultery, the wife had no valid defense to that ground under either statute.[109]

            Dealing next with the Thomasson wife's affirmative ground for divorce, the court concluded that, while many of the findings below relevant to this issue were not supported by the record, the wife nonetheless had sustained her case for cruel and inhuman treatment by the husband.[110]  The court did disturb one finding, however, holding that the parties in this case were not “separated” until the wife announced on November 8 that she intended to marry another man.  The court stated that “[a] spouse cannot arbitrarily select a separation date that suits his or her convenience or fancy without notice to his or her spouse, and continue sharing the same home, without a compelling reason for doing so.”[111]

            The court then considered the last issue, whether the wife's adultery preceded and provided justifiable cause for the husband's cruel and inhuman treatment and thus barred her action for divorce under Tennessee Code Annotated section 36-4-120.  Although not explicitly modifying the trial court's finding that the wife's case for cruelty matured on September 2, the court considered whether the wife's adultery could have caused him to commit any of the alleged cruel acts prior to November 8.[112]  Because the husband's defense at trial had been that he did not commit the alleged cruel acts and because the supreme court found that he did not suspect adultery until October 1985 (after which date and before November 8 no acts important to the case for cruelty occurred), the assumed defense of justifiable cause was held not available to the husband.[113]

            Consequently, in the judgment of the court:

 

            The result is that Husband has proven a cause of action for divorce to which Wife is without a valid defense and Wife has proven a cause of action for divorce to which Husband is without a valid defense.  In such circumstances the Court cannot award a divorce to either party and their respective suits must be dismissed.[114]

 

The court then ordered that the husband be reimbursed, out of the wife's half of the already escrowed proceeds of the sale of the couple's home, for any alimony paid to the wife.  The amount of reimbursement was to be determined by the trial court if the parties could not agree on the proper sum.[115]

            The court supported its judgment of mutual dismissal by citation to the Tennessee cases of Brewies and Akins.[116]  Thus it seemed that the broad rule of common-law recrimination adopted in Brewies—that divorce will not be granted when both parties are equally at fault[117]—had been reaffirmed, along with the Akins proviso that to be considered equal, “[m]isconduct sufficient to provide a bar to plaintiff spouse's right to relief must reach that degree of proof required to establish a ground for divorce if defendant had sought affirmative relief.”[118]  Additional provisos preserved from Chastain seem to be, first, that there is no defense of justifiable cause for adultery[119] and, second, that adultery as justifiable cause for misconduct by the other spouse must be known to the other spouse and must precede in time the maturation of the adulterous spouse's ground for divorce.[120]  The Thomasson court distinguished its 1984 ruling in Fox v. Fox[121] on the facts.[122]

            Contrary to the view taken in the dissent that changes in the state's divorce and alimony statutes evinced a change in state policy that no longer required the rule of Brewies,[123] Chief Justice Harbison's concurrence argued that Brewies rested squarely on sections of the divorce statutes unmodified since that decision.[124]  The fact that the legislature had met many times and had not amended the fault-based statutes so as to abrogate their construction in Brewies meant that the legislature had adopted that construction, under the rule of Hamby v. McDaniel,[125] and that the court should not overrule it.[126]

            In the dissenting opinion, Justice Drowota traced the policies embodied in the Brewies line of cases and concluded that “those decisions were wholly consistent with and complementary of the statutes then in effect.”[127]  Justice Drowota argued, however, that neither the fault-based statutes nor the actions and non-actions of the legislature compelled the result arrived at by the majority.  Justice Drowota stated:

 

It is true that no statute explicitly permits a dual divorce.  Nor does anything in the statutes expressly preclude a court, under circumstances present in the instant case, from granting both parties a divorce.  We are left, as were the courts at the time of Brewies and its progeny, with the task of determining the policy of the state on this question, a policy found certainly in prior judicial decisions, but also and primarily in the statutes themselves.[128]

 

            Moreover, the dissent found that the legislature's adoption of the additional grounds for divorce of irreconcilable differences,[129] and living separate and apart without minor children for three years[130] had established a more modern state policy.  That policy recognized that dissolution of an irretrievably broken marriage may be in the interests of society, even when there is no innocent spouse.  The dissent found another reflection of new policy in the legislature's repeal of the old, absolute bar to receipt of alimony by a defendant when the marriage was “dissolved at the suit of the plaintiff,” through its adoption of a new statute allowing for consideration of relative fault in the determination of alimony.[131]  Thus a dual fault divorce need no longer result in the cessation of support to a dependent spouse when support, whether temporary or permanent, is warranted under the more equitable rules of the new alimony statute.  Therefore, the dissent found that a state policy already recognized by the supreme court, in a line of cases beginning before Brewies, had come to “full bloom.”[132]  The dissent pointed to a recent expression of that policy in Justice Fones' opinion for a unanimous court in Hyde v. Hyde,[133] upholding an alien divorce desired by both parties as substantially in compliance with the state's new irreconcilable differences ground, wherein Justice Fones quoted then Justice Henry, writing for another unanimous court in Farrar v. Farrar:[134]

 

            We fully recognize that considerations of public policy demand that the institution of marriage be sheltered and safeguarded.  But there is an obverse side to the coin of public policy and consideration must be given to the fact that society is illserved by a legally commanded continuance of a marriage which exists in name only.[135]

 

            Thus the dissent would have overruled Brewies, granted both parties the divorce, and remanded the case to the trial court for a determination of alimony, if any, and the division of the parties' marital property.[136]

 

                  V.  Legislation in Response to Thomasson

 

            Since 1977, for parties coming into a Tennessee court on the ground of irreconcilable differences—where no showing of misconduct is required or made—the doctrine of recrimination has not been an obstacle to ending broken marriages.  Many couples, however, who are unable to agree to the equitable property settlement and child custody and support agreement that is required in order to proceed on grounds of irreconcilable differences, have continued to come into court on the older, fault-based grounds.

            Since the adoption of entirely new alimony provisions in Tennessee in 1983, that allow any award of alimony to be based on need and the relative fault of the parties, among other factors, it has not been of paramount financial importance which party is granted a divorce upon one of the fault-based grounds.  Yet Tennessee trial courts have been prevented from using the flexibility of the new alimony statute to bring about an equitable end to certain broken marriages.  When both parties have attempted to prove the other side's misconduct (in an effort to promote their financial, custodial, or personal interests), they have often run afoul of the recrimination doctrine, because both parties have shown grounds sufficient for divorce.

            Feeling that much court time was wasted, and ill-feeling between the parties was aggravated by arguing over which party received the divorce in cases where both sides agreed that there were grounds and that the marriage was dead, one Shelby County judge suggested new statutory language to authorize simply declaring the parties to be divorced.[137]  The proposed change, as ultimately filed in the 1987 session of the General Assembly, read:

 

In all actions for divorce from the bonds of matrimony, if any party is entitled to a divorce, the court in its decree may declare a marriage to be dissolved rather than awarding a divorce to either party.  This subsection shall have no effect on the power of a court to determine and award alimony or support.[138]

 

This bill would have allowed a judge to make the face of the decree neutral as to fault even if fault had been unilaterally proven, and thus as a matter of policy went further than necessary to remove the common-law recrimination barrier.  Opposition to the bill however, focused on charges that it would make divorce easier and undermine family values.  The bill was defeated in committee; and although it was later attached as an amendment on the floor to a suitably-captioned bill, it was withdrawn when the main bill appeared endangered.[139]

            Then in August, 1988, the Tennessee Supreme Court decided the case of Thomasson v. Thomasson.[140]  Although affirming the rule against dual fault divorce in Tennessee, the court acknowledged the appeal of abolishing recrimination but found that the abolition should be implemented by the legislature and not the court.[141]

            The Tennessee Bar Association made abrogation of the Thomasson rule against dual fault divorce part of its legislative package for the 1989 session of the General Assembly.  The proposed language read:

 

In all action[s] for divorce from the bonds of matrimony or from bed and board, the parties may stipulate as to grounds and/or the Court may, if either or both parties are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party, alone.  The awarding the divorce to both parties shall not affect the rights of either party to support, alimony, child support, equitable division of property or any other rights heretofore provided by law.  No divorce granted prior to the effective date of this section shall be invalid because both parties were granted the divorce or both parties were found to have grounds for divorce.[142]

 

            This bill, like the 1987 bill, was worded to permit a declaration of divorce even if only one party was at fault, but additionally introduced the procedure of stipulation into fault-based divorce proceedings, which in Tennessee, as elsewhere, historically have required verification of non-collusion and the hearing of proof despite admissions or failure to defend.[143]

            The original Senate sponsor of the reform in prior years had already filed his own bill, drafted to track part of the language of the Tennessee Supreme Court in Thomasson.  The proposed bill read as follows:

 

            (a)  Notwithstanding any other provision of law to the contrary, when both parties to a divorce have proved a valid ground or grounds therefor, and neither party has established a statutory defense to such ground or grounds, the court may grant a divorce to both parties.

            (b)  Nothing herein shall be construed to restrict or prohibit the operation of any other provision of law under this title concerning domestic relations.[144]

 

This latter bill passed the Senate over the same objections that had been raised in previous years, probably because of Bar Association support and the impetus of the Thomasson decision.[145]

            The House sponsor preferred to let the companion dual-fault bill[146] move behind the Bar Association's family law package, until the section dealing with the Thomasson problem was dropped from the package bill.  The House Judiciary Committee then revived much of that section in an amendment in substitution for the language of the dual fault bill which had passed the Senate.  Responding to concern that adoption of dual fault might tend to negate the discretion of the court to consider relative fault within the alimony statute,[147] that Committee also added a provision allowing the court to grant the decree of divorce itself to a party “less at fault.”[148]

            These Judiciary Committee changes were adopted by the full House and concurred in by the Senate, so that the statute as finally enacted reads:

 

In all actions for divorce from the bonds of matrimony or from bed and board, the parties may stipulate as to grounds and/or defenses.  The court may, upon such stipulations or upon proof, grant a divorce to the party who was less at fault or, if either or both parties are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.[149]

 

VI.  Unanswered Questions Regarding

Tennessee Code Annotated Section 36-4-129.

 

            Several questions of possible statutory inconsistency are raised by the new statute and need to be resolved.  For example, another statute requires verification that the divorce petition is not made “by collusion with the defendant.”[150]  It does not seem very difficult to find that the right conferred by the new statute to “stipulate as to grounds and/or defenses” does not amount to collusion.  Also, the statute requiring proof of facts relied upon as the ground for divorce to be before the court, despite admission by the defendant or the taking of the bill as confessed, seems modified by the new statute and should now be read to except stipulations under section Tennessee Code Annoted 36-4-129 from the requirement.[151]

            If, after proof or stipulation, the only ground for divorce remaining to each party is adultery, parties that mutually desire to end the marriage may yet have to deal with the uncertain interpretation of Tennessee Code Annotated section 36-4-112(1). This section may have been impliedly repealed by the new statute, but in any event it should no longer be applied without taking account of the new statement of state policy in section 36-4-129.  Parties desiring that their marriage end, even if both are found to be guilty only of adultery, should be allowed to stipulate under the new statute that both parties waive any defenses under section 36-4-112(1).  This approach is especially attractive in light of the supreme court's unanimous ruling in Thomasson itself that “[a]ll of the statutory defenses to a divorce action listed in [Tennessee Code Annotated] section 36-4-112 and [Tennessee Code Annotated] section 36-4-120 are affirmative defenses under [Tennessee Rule of Civil Procedure] 8.03.”[152]  Additionally, the court might find that under the new statute, if the parties stipulate that neither party will allege adultery as a statutory ground under 36-4-101(3), the court may now regard adulterous conduct as proof of cruel and inhuman treatment[153] or indignities and should not reform the parties' stipulated grounds.  Such a view is reinforced by the General Assembly's concurrent action to allow cruel and inhuman treatment to be referred to in pleadings as inappropriate marital conduct.[154]  Furthermore, in cases of mutual adultery in which one spouse resists the divorce, the court might “upon proof, grant a divorce to the party who was less at fault” even if neither party were “entitled to a divorce” because of section 36-4-112(1).

            While a “less at fault” decree under the new statute may have appeal to the judge in certain cases, the permissive language of the provision indicates that it is merely an option to a simple declaration of divorce, rather than a mandatory predicate to consideration of relative fault under the alimony statute.  Moreover, in closer cases in which different kinds of marital misconduct must somehow be weighed against each other, a “less at fault” decree may be more problematic than beneficial.  Which of the many grounds for divorce in Tennessee are more serious than others?  How does the number of different offenses on either side vary the outcome?  Is it a question of law or of fact whether two instances of cruelty are worse than one adultery?  We can reasonably expect that the answers to these questions will differ considerably between trial courts and between sections of the courts of appeals in the state. 

            To assist the supreme court in securing consistency and to inform the legislature as to how policy questions are being decided in this new area, all courts should make especially clear, in the decree or judgment upon appeal, the basis for the “less fault” determination.  Too great a willingness to decree a winner between two parties legally at fault may encourage excessive bitterness, longer trials, and needless appeals.  Furthermore, relative fault is only one of a long and non-exclusive list of factors the legislature has required to be considered in the determination of alimony.  Too much weight placed upon relative fault will conflict with the legislature's clearly declared intent that alimony be rehabilitative of the economically disadvantaged spouse where feasible.[155]

 

VII. Conclusion

 

            The very complexity of a nearly 200-year-old patchwork of divorce statutes makes the answers to today's policy questions in Tennessee far more difficult than they need be.  The new dual and relative fault section does add much-needed flexibility to the statutory scheme, while enhancing the state's modern alimony provisions.  A few years' experience under the new law should allay the fears of those who resisted the change, and should clarify questions that remain to be answered.  At some point in the near future, a comprehensive effort should be undertaken to streamline Chapter 4 of Title 36 of the Tennessee Code by consolidating some of its sections and aligning current grounds and defenses, to yield a more efficient and better understood body of law for application by the state's courts and for further deliberation by the General Assembly.

 

Stephen Kyle Tapp



                    1.     H. Clark, Jr., The Law of Domestic Relations in the United States § 13.11, at 528 (2d ed. 1988).

                    2.     Beamer, The Doctrine of Recrimination in Divorce Proceedings, 10 UMKC L. Rev. 213, 216-19 (1942) (still the leading treatment of the subject).  See also Forster v. Forster, 1 Hagg. Con. 144, 146-48, 161 Eng. Rep. 504, 505-06 (1790).

                    3.     Riga, Divorce in the Justinian Code: Harbinger of Things to Come?, 8 Whittier L. Rev. 917, 918-19 (1987).  In the earliest days of Roman law, a wife was held to be under the power (manus) of her husband, just as she had formerly been under her father's power.  Gradually, however, with the growing independence of women, a new form of marriage developed, one without coverture.  This free form of marriage was held together by the mutual consent of the parties; the wife retained her separate property and her contractual capacity.  J. Bryce, Studies in History and Jurisprudence 782-802 (1901); II G. Howard, A History of Matrimonial Institutions 11-19 (1904).

                    4.     During the reign of Augustus (27 B.C. - 14 A.D.), this property settlement procedure was enacted into law.  The presumption under the statute was that the wife was entitled to recover her whole dowry within one year.  If she was guilty of adultery, however, the husband could retain a sixth of the dowry; for a less serious fault of the wife, the husband could keep only one eighth.  If the husband was guilty of adultery, he had to return the dowry right away; for a less serious fault, he was allowed six months to return the dowry.  Because the statute did not provide for the case when husband and wife were both at fault, the courts of the time decided that “[t]he result should be the same as if neither party were at fault—the wife recovering the whole of her dowry within one year's time.”  Beamer, supra note 2, at 218-19.

                    5.                        In the later imperial period a sort of second form of matrimonial property was introduced, called the gift for the sake of marriage (donatio propter nuptias).  It was made by the husband ... .  And just as the husband was entitled, where a divorce was caused by the wife's fault, to retain a part of the Dos, so if a divorce was caused by the husband's fault, the donatio propter nuptias, or a part of it, might be claimed by the injured wife.

J. Bryce, supra note 3, at 796-97.  See also Beamer, supra note 2, at 219; Riga, supra note 3, at 919.

                    6.     Beamer, supra note 2.

                    7.     Deuteronomy 24:1, as rendered in The Principles of Jewish Law 414 (M. Elon ed. 1975).  See also The Holy Bible (King James) (“hath found some uncleanness in her”); The Holy Bible (Revised Standard) (“has found some indecency in her”).

It may be that by New Testament times, the wife also had the ability to initiate the divorce, see Mark 10:12 (Revised Standard) (“if she divorces her husband”); but it is still Jewish law that the bill of divorce, the get, must be executed by the husband and delivered into the hand of the wife.  The Principles of Jewish Law, supra, at 414, 420-21.

                    8.     The Principles of Jewish Law, supra note 7, at 353.  This agreement is reinforced by the mutual signing during the wedding of the ketubbah deed, a document presented by the husband recording his financial obligations toward the wife.  Id. at 387.  Yet the obligations and rights of the parties are not derived merely from contract, but also by operation of law.  These legal rights and obligations include mutual conjugal duties, the right of the wife to support, and the right of the husband to domestic services and to the income from and inheritance of her property.  Id. at 354-55, 379-87.  The ketubbah deed itself contains the promise of the husband to return the equivalent of the wife's dowry, along with an additional sum as interest, as well as the “main” ketubbah, a sum of the husband's money at least equal to the minimum set by law, in the event of dissolution of the marriage.  Id. at 388-89.  See generally id. at 11-19.

                    9.     Id. at 388-89 (citations omitted).  Exodus 22:16-17 offers support for the proposition of some authorities that the liability to pay the main ketubbah existed in Pentateuchal law.  Id. at 388.

                 10.     Deuteronomy 5:18.

                 11.     Deuteronomy 22:22.

                 12.     Matthew 5:32, 19:9.  Even this exception is omitted in Luke 16:18.

                 13.     Matthew 5:32.

                 14.     Matthew 19:9; Mark 10:11; Luke 16:18.

                 15.     Matthew 5:32; Luke 16:18.

                 16.     Mark 10:12.

                 17.     Matthew 19:8; Mark 10:5.  It has been suggested that this Biblical interchange reflected an ongoing dispute between the school of Hillel, “broad constructionists” who held that the law meant the husband might assign any reason for divorce, and the school of Shammai, “strict constructionists” who held that sexual immorality was the only ground for divorce authorized by the wording of the scripture.  II G. Howard, supra note 3, at 13 & n.2, 20 & n.2.

                While his stand on divorce may have been something of a reaction to the influence of decadent trends in Rome in those times, the intensity of Jesus' view may also have been affected by the circumstances surrounding his birth.  “When his mother Mary had been betrothed to Joseph, before they came together she was found to be with child of the Holy Spirit; and her husband Joseph, being a just man and unwilling to put her to shame, resolved to divorce her quietly.”  Matthew 1:18-19 (Revised Standard).  If Joseph had exercised his right in this respect, Jesus would likely have been considered a “doubtful mamzer,” the possible offspring of a prohibited union, with impaired rights in Jewish society, unless Mary had been willing to name a legitimate Jew or a gentile as the father.  The Principles of Jewish Law, supra note 7, at 437.  If she had done so, Mary and the man she named might have been subject to the severe penalties for adultery, which included being stoned to death.  Deuteronomy 22:23-27; The Principles of Jewish Law, supra note 7, at 488-89.

                 18.     Matthew 19:10.

                 19.     Matthew 19:11-12.

                 20.     Romans 7:2-3; I Corinthians 7:10-11.

                 21.     Riga, supra note 3, at 920-21.

                 22.     Beamer, supra note 2, at 220.

                 23.     Riga, supra note 3, at 922.

                 24.     Id.

                 25.     Id. at 921-27.

                 26.     Id. at 930.

                 27.     Beamer, supra note 2, at 220-21.

Divorce ... might take place by mutual consent; or on account of the wife's infidelity or desertion.  In the case of infidelity the husband took all the property.  Otherwise, the wife, if she retained the custody of the children, took half the property; if she did not, she took the share of a child; if there were no children, she took her morning gift and her own property.

II Holdsworth, History of English Law 90 (4th ed. 1936) (footnotes omitted).

                 28.     Clark, supra note 1, § 12.1, at 406.

                 29.     Beamer, supra note 2, at 221.

                 30.     I Holdsworth, History of English Law 621 (3d ed. 1922).

                 31.     Clark, supra note 1, § 12.1, at 406.

                 32.     Beamer, supra note 2, at 222.  See also Forster v. Forster, 1 Hagg. Con. 144, 146-48, 161 Eng. Rep. 504, 505-06 (1790).  Consortium is defined as “conjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation.”  Black's Law Dictionary 280 (5th ed. 1979).

                 33.     Beamer, supra note 2, at 222; Clark, supra note 1, § 13.11, at 527.

                 34.     Beamer, supra note 2, at 222 & n.48.

                 35.     Id. at 222-23; Clark, supra note 1, § 12.1, at 407.

                 36.     Clark, supra note 1, § 12.1, at 407.

                 37.     Beamer, supra note 2, at 237.

                 38.     Id.

                 39.     Id. at 241; Clark, supra note 1, § 12.1, at 407-08.

                 40.     Freidman, Rights of Passage: Divorce Law in Historical Perspective, 63 Or. L. Rev. 649, 652-53 (1984).

                 41.     See Clark, supra note 1, §§ 12.1, at 409, 13.8, at 521 & n.2, 13.9, at 522 & n.4, 13.10, at 525 & n.2, 13.11, at 528 & n.15. 

                 42.     Act of October 6, 1799, ch. 19, §§ 1-10, 1799 Tenn. Public Acts 175-77; W. Garrett, Tennessee Divorce, Alimony and Child Custody § 5-1 (2d ed. 1984).

                 43.     Id.; Tenn. Const. art. XI, § 4.

                 44.     Act of February 19, 1836, ch. 26, §§ 1-23, 1835—1836 Tenn. Pub. Acts 117-23 (codified as amended in scattered sections of Tenn. Code Ann. tit. 36, ch, 4).  The Act added three grounds for divorce from bed and board to the grounds for absolute divorce already permitted under earlier acts.  Shortly thereafter, the Assembly gave courts the discretion to grant absolute divorce for those three additional grounds.  Act of February 4, 1842, ch. 133, § 1, 1841-42 Tenn. Pub. Acts 155 (codified as amended at Tenn. Code Ann. § 36-4-102 (Supp. 1989)).

                 45.     Act of February 19, 1836, ch. 26, § 9, 1835—1836 Tenn. Pub. Acts 119 (codified as amended at Tenn. Code Ann. § 36-4-112 (1984)).  See infra note 108 for current wording of the statute, which is unchanged in substance from the original enactment. 

                Condonation is defined as “the conditional remission or forgiveness, by means of continuance or resumption of marital cohabitation, by one of the married parties, of a known matrimonial offense committed by the other, that would constitute a cause of divorce; the condition being that the offense shall not be repeated.”  Black's Law Dictionary 267-68 (5th ed. 1979).

                Connivance is defined as “plaintiff's corrupt consent, express or implied, to offense charged against defendant.”  Id. at 274.

                 46.     Act of February 19, 1836, ch. 26, § 20, 1835—1836 Tenn. Pub. Acts 122 (codified as amended at Tenn. Code Ann. § 36-4-120 (1984)).  See infra note 105 for the current version of the statute.

                 47.     Act of February 19, 1836, ch. 26, § 13, 1835—1836 Tenn. Pub. Acts 120-21.  The statute was codified without change in substance at Code of 1858 § 2473 and recodified unchanged at Tenn. Code Ann. § 36-826 (1955) (repealed 1983).  See infra note 62 for the text of the statute.

                 48.     34 Tenn. (2 Sneed) 716, 718 (1855).

                 49.     Id. at 719.

                 50.     Id. at 727.  This policy was continued in Rutledge v. Rutledge, 37 Tenn. (5 Sneed) 554, 558-59 (1858), where only a divorce from bed and board was granted upon a showing of cruelty amounting to less than “great aggravation,” and only then for an indefinite period.

                 51.     42 Tenn. (2 Cold.) 375 (1865).

                 52.     Id. at 376.  This holding put a considerable gloss on Code of 1858 § 2460, which required that “the defendant allege and prove” the defense under the statute.  The current version of the statute retains the requirement.  See Tenn. Code Ann. § 36-4-112 (1984), infra note 108.

                 53.     52 Tenn. (5 Heisk.) 462 (1871).

                 54.     Id. at 464.

                 55.     Id. at 471-72 (Turney, J., dissenting).  Justice Turney quoted the injunctions of Jesus against divorce found in Matthew 19:3-9 from the King James Version in full, but notably omitted Jesus' own limitation of his doctrine in the three verses immediately following.  IdSee supra text accompanying notes 18-19.

                 56.     102 Tenn. 148, 52 S.W. 778 (1899).

                 57.     The court held that plaintiff's “violation of his marriage vows ... is enough to bar him from relief,” citing Shannon's Code of Tenn. § 4213, a predecessor to Tenn. Code Ann. § 36-4-112 (1984), but not making clear which of the defenses it was applying.  Moore at 156, 52 S.W. at 780-81.  Although the court might have found that through his unjustified abandonment “he exposed her to lewd company, whereby she became ensnared” into adultery, the court also dismissed the wife's “cross bill” that alleged adultery and abandonment.  Id. at 156, 52 S.W. at 781.  Because the husband's alleged adultery was never reached, it is likely that the court regarded the husband's abandonment as the wife's defense to his ground of adultery, and the wife's adultery subsequent to the abandonment as the husband's defense to her grounds of both adultery and abandonment.

                 58.     104 Tenn. 217, 56 S.W. 858 (1900).

                 59.     For a definition of “condonation,” see supra note 45.

                 60.     104 Tenn. at 232, 56 S.W. at 862.

                 61.     165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933).

                 62.     Sections 2472-73 of the Code of 1858 provided:

 2472.  When a marriage is dissolved at the suit of the husband, and the defendant is owner, in her own right, of lands, his right to and interest therein and to the rents and profits of the same shall not be taken away or impaired by the dissolution; but the same shall remain to him as though the marriage had continued.  And he shall also be entitled to her personal estate in possession or in action, and may sue for and recover the same in his own name.

  2473.  If the bonds of matrimony be dissolved at the suit of the husband, the defendant shall not be entitled to dower in the complainant's real estate, nor to any part of his personal estate, in case of his intestacy, nor to alimony.

                 63.     Allen. v. McCullough, 49 Tenn. (2 Heisk.) 174, 188-89 (1870).

                 64.     Code of 1858 §§ 2468-69, 2471.

                 65.     Williams v. Williams, 146 Tenn. 38, 236 S.W. 938 (1922).

                 66.     Id. at 41, 236 S.W. at 939.  While the earlier case of Toncray v. Toncray, 123 Tenn. 476, 131 S.W. 977 (1910), had grounded the wife's right to alimony in the husband's common law duty to support her, the Williams court found that the statute providing for alimony was passed not merely to provide for the wife's support but to provide for that support by the husband when he was at fault.  Support was to be provided regardless of the wife's affluence, although her means might, under the statutes, cause a reduction in the amount.  Williams at 44-46, 236 S.W. at 940-41.  The wife's financial position after dissolution of marriage at the suit of the husband was somewhat improved by the supreme court's decision in Brown v. Brown, 160 Tenn. 685, 28 S.W.2d 350 (1930), that the Married Women's Property Act passed in 1919 negated the old statute calling for forfeiture of her property.  The court also noted that “[t]here is no provision in our law for decreeing alimony to the husband upon a divorce granted to him.”  Id. at 688, 28 S.W.2d at 351.

                 67.     27 Tenn. App. 68, 178 S.W.2d 84 (1943).

                 68.     Id. at 71, 178 S.W.2d at 85.

                 69.     The court could have required upon remand a proper characterization of the grounds, specification of the timing of both parties' conduct, and application of the justifiable cause statute and the Douglas standard for reasonable cause for desertion. 

                 70.     27 Tenn. App. at 70, 178 S.W.2d at 84.

                 71.     Id. at 73, 178 S.W.2d at 86.

                 72.     Id. at 72-73, 178 S.W.2d at 85.

                 73.     198 Tenn. 600, 281 S.W.2d 492 (1955).

                 74.     Id. at 612-14, 281 S.W.2d at 498-99.

                 75.     39 Tenn. App. 306, 330, 282 S.W.2d 661, 672 (1955).

                 76.     59 Tenn. App. 678, 443 S.W.2d 502 (1968).

                 77.     Id. at 696, 443 S.W.2d at 510.

                 78.     61 Tenn. App. 506, 456 S.W.2d 354 (1969).

                 79.     Id. at 515, 456 S.W.2d at 358 (1969).  The first half of the proviso seems to describe common-law recrimination, while the “recrimination” mentioned in the second half may refer to provocation providing a defense under the justifiable cause statute.  Tenn. Code Ann. § 36-4-120 (1984), infra note 105.

                In Douglas v. Douglas, 156 Tenn. 655, 4 S.W.2d 358 (1928), the supreme court had earlier considered what might be “reasonable cause” for defendant's desertion when suit for divorce was brought under the predecessor to section 36-4-101(4).  Reviewing the Corpus Juris legal encyclopedia and cases from other states, the court had decided that defendant would have to prove conduct on the part of the plaintiff that would have entitled defendant to a divorce had it been sued for affirmatively.  Douglas, at 660-61, 4 S.W.2d at 359-60.

                 80.     559 S.W.2d 933 (Tenn. 1977) (3-2 decision).

                 81.     See W. Garrett, Tennessee Divorce, Alimony, and Child Custody § 7-6 (2d ed. 1984); Comment, Defenses to Divorce Confined to Those Prescribed by Statute, 9 Mem. St. U.L. Rev. 346 (1979); Case Comment, Divorce—Restrictions on Recrimination, 46 Tenn. L. Rev. 461 (1979).

                 82.     Chastain, 559 S.W.2d at 933-34.

                 83.     Id. at 934, 936.

                 84.     Id. at 934-35.

                 85.     Id. at 934.

                 86.     Id. at 935.

                 87.     676 S.W.2d 956 (Tenn. 1984).

                 88.     Id. at 957-58.

                 89.     Id. at 957.

                 90.     Thomasson v. Thomasson, 755 S.W.2d 779, 780-81 (Tenn. 1988).  The $20,500 figure is the per year average of wife's $58,158 earnings over a thirty-four month period.

                 91.     Id. at 781.

                 92.     Id. at 783-84, 785-86.

                 93.     Id. at 787.

                 94.     Id. at 782.

                 95.     Id. at 783, 787.

                 96.     Id. at 784.

                 97.     Id. at 784-85.

                 98.     Id. at 780.

                 99.     Id. at 785.

              100.     Id. at 780, 786.

              101.     Id. at 780.

              102.     Id. at 786.  See Tenn. Code Ann. § 27-1-113 (1984) (“To the extent that the findings of the chancery court and the Court of Appeals concur, they shall, if there be any evidence to support them, be conclusive upon any review of the facts in the Supreme Court ... .”).

              103.     Id. at 786.

              104.     Id.

              105.     IdTenn. Code Ann. § 36-4-120 (1984) provides:

  (a)  If the cause assigned for a divorce be any of those specified in § 36-4-102, the defendant may make defense by alleging and proving the ill conduct of the complainant as a justifiable cause for the conduct complained of, and on making out the defense to the satisfaction of the court, the bill may be dismissed with or without costs, in the discretion of the court.

  (b)  But if the court be of the opinion that the complainant is entitled to relief, it may be granted, according to the prayer of the bill, by annulling the marriage, or by ordering a separation, perpetual or temporary, or such other decree as the nature and circumstances of the case require.

              106.     559 S.W.2d 933 (Tenn. 1977).  See supra text accompanying notes 80-86.

              107.     Thomasson, 755 S.W.2d at 787.  See supra note 79.  The grounds listed for which Tenn. Code Ann. § 36-4-120 may provide a defense are cruel and inhuman treatment, indignities, and abandonment and nonsupport.  Cruel and inhuman treatment “may also be referred to in pleadings as inappropriate marital conduct.”  1989 Tenn. Pub. Acts 778 § 1 (to be codified at Tenn. Code Ann. § 36-4-102(a)(1) (effective date June 1, 1989).

              108.     Thomasson, 755 S.W.2d at 786.  (While the opinion refers to “plaintiff's spouse,” the meaning is clear.  It should read “plaintiff” or “defendant's spouse.”)

          Tenn. Code Ann. § 36-4-112 (1984) reads:

If the cause assigned for the divorce be adultery, it shall be a good defense and perpetual bar to the same if the defendant allege and prove:

  (1)  That the complainant has been guilty of like act or crime;

  (2)  That the complainant has admitted the defendant into conjugal society and embraces after knowledge of the criminal act;

  (3)  That the complainant, if the husband, allowed of the wife's prostitutions and received hire for them; or

  (4)  That he exposed her to lewd company, whereby she became ensnared to the act or crime aforesaid.

It appears from the language of the opinion that the supreme court understands “like act or crime” to be limited to adultery.

              109.     Thomasson, 755 S.W.2d at 786-87.  The court distinguished the Chastain result because in that case “there was no husband present who had alleged and proven adultery as an affirmative ground for divorce,” and that, as a mere defense, “adultery occurring after the ground of abandonment and nonsupport had matured did not meet the statutory requirement of providing justifiable cause for defendant's abandonment.”  Id.

              110.     Id.

              111.     Id.

              112.     Id.  Apparently, the supreme court was indicating that it will consider a spouse's adultery as justification for acts of cruelty taking place only before a de facto separation, but not for cruel acts afterwards.  See Morris v. Morris, 11 Tennessee Att’y Memo 5-9 (Tenn. Ct. App. Dec. 24, 1985) (WESTLAW, TN-CS library, 1985 WL 4693) (dating after separation not provocation for physical abuse).  See also Perry v. Perry, 765 S.W.2d 776, 777-78 (Tenn. Ct. App. 1988) (explaining this point in Thomasson).

              113.     Thomasson, 755 S.W.2d at 787.  The only act of the husband after October, 1985 and before November 8 reported in the supreme court opinion is an admonition by the husband to the wife in a restaurant not to invite her suspected paramour to the family home again.  Id. at 783.

              114.     Id. at 787.

              115.     Id.

              116.     IdSee supra notes 67 & 78 and accompanying text.

              117.     See Brewies v. Brewies, 27 Tenn. App. 68, 178 S.W.2d 84 (1943).

              118.     Thomasson, 755 S.W.2d at 786 (citing Akins v. Akins, 61 Tenn. App. 506, 515, 456 S.W.2d 354[, 357-58] (1969); Schwalb v. Schwalb, 39 Tenn. App. 306, 330, 282 S.W.2d 661[, 672] (1955); Douglas v. Douglas, 156 Tenn. 655, 660, 4 S.W.2d 358[, 359] (1928)).

              119.     Thomasson, 755 S.W.2d at 787.  Defenses to adultery were limited to those in Tenn. Code Ann. § 36-4-112, supra note 108.

              120.     Thomasson, 755 S.W.2d at 787.  The justifiable cause statute is Tenn. Code Ann. § 36-4-120, supra note 105.

              121.     676 S.W.2d 956 (Tenn. 1984).  In Fox, the plaintiff was granted a divorce, despite the adulterous conduct of both parties, because the plaintiff established an independent ground, cruel and inhuman treatment.  Id.

              122.     Thomasson, 755 S.W.2d at 787.

                Justice Fones wrote the opinion for the court, in which Chief Justice Harbison and Justice Cooper concurred.  Chief Justice Harbison wrote a separate concurrence, in which Justice Cooper and Justice Fones concurred.  Justice Drowota filed a separate opinion wherein he concurred in all except the denial of divorce to either party and would have granted a divorce to both parties.  Justice O'Brien concurred in Justice Drowota's opinion.  Id. at 787-88.

              123.     Id. at 789-92 (Drowota, J., dissenting).

              124.     Id. at 788-89 (Harbison, C.J., concurring).  The statutes referred to in the concurrence as showing that the divorce proceeding is, except for the grounds of irreconcilable differences and absence for three years, “basically adversarial” are (in the 1984 compilation) Tenn. Code Ann. §§ 36-4-107 (verification of petition, non-collusion), 36-4-113 (right to jury trial), 36-4-114 (proof required except for irreconcilable differences), 36-4-119 (decree may grant complainant relief by annulment or dissolution of the marriage or by separation for a limited time), and 36-4-120(a) (justifiable cause).  Thomasson, 755 S.W.2d at 788-89.

              125.     559 S.W.2d 774, 776-77 (Tenn. 1977) (3-2 decision) (Fones, J., gave the opinion of the court).

                The legislature is presumed to know the interpretation which courts make of its enactments; the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially where the law is amended in other particulars, or where the statute is reenacted without change in the part construed.

. . . .

                Changing our construction of the statute at this time would amount to judicial legislation.

Id.

              126.     Thomasson, 755 S.W.2d at 788-89 (Harbison, C.J., concurring).

              127.     Id. at 792 (Drowota, J., dissenting).

              128.     Id. at 791.

              129.     1977 Tenn. Pub. Acts ch. 107, § 1 (codified as amended at Tenn. Code Ann. § 36-4-103 (Supp. 1988)).

              130.     1985 Tenn. Pub. Acts ch. 178, § 1 (codified at Tenn. Code Ann. § 36-4-101(12) (Supp. 1988)).  The three year period was shortened to two years by 1989 Tenn. Pub. Acts 393 (to be codified at Tenn. Code Ann. § 36-4-101(12)) (effective date May 29, 1989).

              131.     Thomasson, 755 S.W.2d at 790, 792 (Drowota, J., dissenting).

              132.     Id. at 792.

              133.     562 S.W.2d 194, 197-98 (Tenn. 1978).

              134.     553 S.W.2d 741 (Tenn. 1977).

              135.     Thomasson, 755 S.W.2d at 792 (Drowota, J., dissenting) (quoting Farrar v. Farrar, 553 S.W.2d at 744-45).

              136.     Id.

              137.     Telephone interview with Circuit Court Judge Robert A. Lanier, Thirtieth Judicial District, Division VII, Memphis (Sept. 15, 1988).

              138.     S. 452, 95th Gen. Assembly, 1st Sess. (1987) (as proposed Tenn. Code Ann. § 36-4-101(b)) (emphasis added) (sponsored by Senator Steve Cohen, District 30, Memphis).  The bill would have added nearly identical language to section 36-4-102 as paragraph (c).

              139.     Interview with Senator Steve Cohen, District 30, Memphis (Oct. 1, 1989).

              140.     755 S.W.2d 779 (Tenn. 1988).

              141.     “The dissenting opinion is thoughtful and the result suggested is appealing.  However, I do not believe that that result is justified under the present statutes on the subject of divorce.”  Id. at 788 (Harbison, C.J., concurring, joined by Fones & Cooper, JJ.).  “If the General Assembly of the state wishes to adopt the principle of dual divorce, it may do so by amending existing statutes.”  Id. at 789.

              142.     S. 775, 96th Gen. Assembly, 1st Sess. § 2 (1989) (as proposed additional paragraph at the end of Tenn. Code Ann. § 36-4-101) (emphasis added).  Telephone interview with Senator Curtis Person, District 31, Memphis, Chairman of the Senate Judiciary Committee and sponsor of the bill (Oct. 2, 1989); telephone interview with Larry Rice, Chairman, Tennessee Bar Association Family Law Section Legislative Committee, and draftsman of the quoted section of the bill (Oct. 4, 1989).  Section 5 of S. 775, which would have allowed parties seeking divorce for irreconcilable differences to request, six months after filing, that the court resolve any issues remaining between them and grant a divorce, was also filed as a separate bill by the same sponsor, as S. 778, 96th Gen. Assembly, 1st Sess. (1989).  Even though the original content of S. 778 did not become law in 1989, that numbered bill became the vehicle for the passage of four sections from S. 775.  See 1989 Tenn. Pub. Acts 489.

              143.     For the verification requirement, see Tennessee Code Annotated section 36-4-107 (1984).  For the proof requirement, see section 36-4-114.  Divorce on grounds of irreconcilable differences is excepted out of both requirements.  For a general discussion of the genesis and function of the prohibition against collusion, see Clark, supra note 1, § 13.9.

              144.     S. 440, 96th Gen. Assembly, 1st Sess. § 1 (1989) (the two paragraphs to be added as a new section of Tenn. Code Ann. tit. 36, ch. 4, pt. 1) (sponsored by Sen. Steve Cohen, District 30, Memphis).

              145.     Interview with the bill's sponsor, Senator Steve Cohen, District 30, Memphis (Oct. 1, 1989).  The Senate passed S. 440 as pre-filed and quoted in the text on March 6, 1989 (ayes 17, nays 8, not voting 7).

              146.     H.R. 621, 96th Gen. Assembly, 1st Sess. (1989) (sponsored by Rep. Bill Purcell, District 52, Nashville).

              147.     Telephone interview with Representative Bill Purcell, District 52, Nashville (Oct. 9, 1989).

              148.     Thus the notion of “comparative rectitude” was grafted onto the legislation.  Comparative rectitude has its origin as a court-made doctrine in a few states to circumvent recrimination and allow a divorce to be granted to the party found less at fault.  2 H.H. Clark, Jr., The Law of Domestic Relations in the United States § 14.13 (Practitioner's 2d ed. 1987).

Theoretically comparative rectitude allows the court to deny a divorce where the fault is equal, but since it is always possible to assess one type of misconduct as more or less serious than another, the practical consequence of comparative rectitude is to reduce or end the applications of the doctrine of recrimination.

Id. at 70-71.

                This “least fault” approach was advanced by a circuit court in a decree entered before final disposition in Thomasson but rejected by the court of appeals after Thomasson in Perry v. Perry, 765 S.W.2d 776 (Tenn. Ct. App. 1988) (post-separation adultery is a ground for divorce).

              149.     Act of May 25, 1989, ch. 543, § 1, 1989 Tenn. Pub. Acts 960 (to be codified at Tenn. Code Ann. § 36-4-129) (effective date June 8, 1989).  The House of Representatives adopted this language as the amendatory language in S. 440 on May 24, 1989 and then passed the bill on that day (ayes 80, nays 7, not voting 1).  The Senate concurred in the House amendment the following day; and the bill was signed into law by the Governor on June 8, 1989.

              150.     Tenn. Code Ann. § 36-4-107 (1984).  See also supra note 143.

              151.     Tenn. Code Ann. § 36-4-114 (1984).  See also supra note 143.  The ruling in Warren v. Warren, 731 S.W.2d 908 (Tenn. Ct. App. 1985) that section 36-4-114 precludes obtaining a divorce by stipulation appears to be no longer required and in fact to be abrogated by the new statutory authorization of stipulation in section 36-4-129.

              152.     755 S.W.2d at 786.  The dissenters concurred in all except the denial of a divorce.  Id. at 787-88.

              153.     The rule of Fox v. Fox, 676 S.W.2d 956, 957 (Tenn. 1984) that “a successful party cannot use adultery to support cruel and inhuman treatment” may no longer be required in proceedings under the new statute.

              154.     See supra note 107.  Similarly, a party to a divorce may wish not to expose the children of the marriage to grief by accusing the other spouse of adultery, yet be nonetheless (if not more) deserving of relief from the misconduct complained of.

              155.     Tenn. Code Ann. § 36-5-101(d) (Supp. 1989).