For affirmance in part, reversal in part and remandment -- Chief Justice Hughes, and Justices Hall, Mountain, Sullivan, Pashman and Clifford. Opposed -- None. The opinion of the Court was delivered by Sullivan, J.
This is an appeal and cross-appeal in a divorce case. We granted certification while the appeal was pending unheard in the Appellate Division, primarily to consider defendant-cross-appellant's challenge to the constitutionality of the equitable distribution of property provisions of the amended Divorce Act, L. 1971, c. 212, N.J.S.A. 2A:34-1 et seq.
In July 1970 plaintiff, Dorothy Mae Beth Chalmers, filed a suit against her husband George M. Chalmers for a divorce on the ground of desertion. The husband answered and counterclaimed on April 29, 1971 charging adultery and seeking a divorce on that ground. The matter was awaiting trial when the amended Divorce Act, supra, became effective on September 13, 1971. Plaintiff then amended her complaint to seek a "no fault" divorce under the new statute based on 18 months separation of the parties with no reasonable prospect of reconciliation. See N.J.S.A. 2A:34-2(d).
At the trial of the matter on November 15, 1971, plaintiff, after testifying to a separation of the parties for the statutory period with no reasonable prospect of reconciliation, admitted that while married to defendant she had had an adulterous relationship with a third party. She testified
that when she told defendant that she was pregnant by another man, defendant moved out of the house. Her attorney stated to the court that plaintiff was not looking for alimony, but did want support for the one child of the marriage and "a division of assets."
The trial court, in an opinion reported at 117 N.J. Super. 474 (1971), found that plaintiff had proved a case in separation, but the separation was the result of plaintiff's admittedly adulterous conduct. Consequently, the court dismissed plaintiff's amended complaint for divorce and awarded defendant a divorce on his counterclaim. In its opinion the court noted that "no alimony has been sought; none is awarded." 117 N.J. Super. at 479. The court awarded custody of the child (age eight) to plaintiff and ordered defendant to pay $40 per week for the child's support, to provide Blue Cross and Blue Shield coverage and be responsible for major medical and dental care.
The court also ordered that plaintiff be awarded 20% of defendant's assets, but excluded from the order for distribution assets acquired by defendant after April 30, 1966, the date of plaintiff's adulterous conduct. Counsel for plaintiff was awarded a fee of $2500 payable by defendant.
Plaintiff challenges the validity of the judgment of divorce entered on defendant's counterclaim. She had pleaded condonation as a defense to the charge of adultery. At trial both she and her husband testified that they had had sexual relations with each other on a single occasion in 1968 following the adultery. The trial court in its opinion made no reference to the alleged condonation.*fn1
This matter was tried in November 1971 after the effective date of the amended Divorce Act which "hereby" abolished the defense of condonation. N.J.S.A. 2A:34-7. The fact that the act of alleged condonation antedated the new statute did not give plaintiff a vested right in such defense.
Divorce exists by virtue of statute. The Legislature has full power to modify or change the requirements for divorce, and create or abolish defenses thereto. The law in effect at the time the action was tried controls. To the extent that Huntley v. Huntley, 121 N.J. Super. 328 (Ch. Div. 1972) is to the contrary of our holding herein, it is overruled.
Plaintiff argues that even if defendant was entitled to a divorce on his counterclaim, she was entitled to a "no fault" divorce on her complaint since she proved a separation for 18 consecutive ...