¶1 (dissenting).
¶2 I dissent. The only witnesses concerning the reciprocal charges of misconduct were the plaintiff and the defendant. Decision depends upon our estimate of the character, conduct, and credibility of the parties. Much of the testimony is in direct conflict. The trial *420 judge saw the witnesses and granted a divorce to the plaintiff. I think his decree should be affirmed. This court has repeatedly recognized as a guiding, though not controlling, rule that a decree of divorce in favor of the plaintiff will not be disturbed on appeal by defendant where no questions of law are involved and the decree is based on conflicting evidence. Dobbins v. Dobbins, 31 Or. 584, 44 P. 692; Stout v. Stout, 99 Or. 133, 195 P. 153; Rysdam v. Rysdam, 160 Or. 153, 84 P. (2d) 112.
¶3 It will serve no good purpose to set forth at length the evidence which I consider favorable to the plaintiff. A few brief comments will suffice. The majority opinion suggests that a principal cause of trouble was the plaintiff’s insistence upon working, over the protest of the defendant. Of this I am utterly unconvinced. Concerning her employment as night waitress at a restaurant, the defendant testified thus:
“Q. How did she come to go to work there, Mr. Evans 1
“A. I asked her to.”
¶4 'When she suggested quitting her job, he said she was ‘ ‘ chicken-hearted and couldn’t take it. ’ ’ True, he asked her to quit as a waitress, but it was so that she might take a job in the shipyard, which she refused to do. The testimony concerning plaintiff’s intoxication is directly denied.
¶5 The only witness other than the plaintiff and the defendant, a Mrs. Dunlap, had known the plaintiff for eleven years and testified without contradiction and impeachment that while plaintiff and defendant lived in Pendleton, she was a good wife and mother. I was not convinced concerning defendant’s testimony *421 as to the plaintiff’s alleged neglect of her children and believe that his testimony as to the plaintiff’s occasional failure to return home promptly after a night of work was greatly exaggerated. A narrative of the life of plaintiff and defendant in Portland is characteristic of this feverish war era. The defendant worked days at the shipyard and the plaintiff worked nights at the restaurant. The resulting situation was not conducive to happy home life, but the plaintiff was not to blame for it. One fact is conclusively established, the plaintiff is a faithful and industrious worker. She helped support the family in Pendleton and in Portland. Defendant testified:
“Q. Wouldn’t you say that during all of your married life your wife has been a hard working little woman?
“A. I will admit that.
“ Q. No question about that?
“A. No question about it.”
¶6 At the time of trial, the plaintiff was employed as a clerk-typist by the army engineers.
¶7 Upon the vital issue of physical violence, I think the evidence strongly preponderates against the defendant. The plaintiff testified that on several occasions the defendant beat her. Once he knocked her into the bathtub and gave her a black eye. Once he tore her bathrobe from her. She testified:
“A. I was all ready to go to work one night. He insisted I was not going. It started in then. He tore my dress and the next thing I remember I was on the floor and he made my nose bleed, and he grabbed my hand and pulled my head up and down and hurt my finger. He had a cold cloth on my face afterwards, but I went to work anyway.”
¶8*422 The defendant’s denial of this incident is strongly suggestive of the plea known as the negative pregnant. The age of chivalry may be past, but I still adhere to the view that a man must not beat his wife.
¶9 I think the plaintiff offers a fairly reasonable explanation of the sailor who was the “boy friend” of her ‘ ‘ girl friend. ’ ’ He was certainly not brought to the house for immoral purposes because the plaintiff knew the defendant was at home and the condition of the sailor, whether from intoxication or otherwise, was such that he was taken to the hospital.
¶10 So much for the brief comment on the evidence. I come now to the serious considerations which have led me to express my dissent. I have no doubt that the defendant was guilty of cruel and inhuman treatment. I frankly concede that the plaintiff was also gravely at fault, though not to an equal degree. I concede, further, that persons whose fault was no greater than that of the plaintiff have, in the past, been held to be in pari delicto and, consequently, have been denied relief, although they have themselves been the victims of cruel and inhuman treatment. I concede that a divorce court may invoke the equitable doctrine of clean hands to deny relief to a plaintiff, even though recrimination is not pleaded as a defense, but I deny that it must do so.
“Strictly, recrimination is an affirmative defense which must be specially pleaded or set up in the answer as a defense in order that the defendant may have the right to give proof of such defense. …” 17 Am. Jur., Divorce and Separation, § 325, p. 314.
¶11 When it is claimed that a plaintiff who would otherwise be entitled to a divorce should be denied relief by reason of the rule that a party must come into equity *423 with clean hands, I think consideration should be given to the origin and purpose of the ancient maxim.
‘ ‘ The maxim being one founded on public policy, public policy may require its relaxation. Even when the parties have been found to be in pari delicto, relief has at times been awarded on the ground that in the particular case public policy has been found to be best conserved by that course. ” 21 C. J., Equity, § 175, p. 189.
“Divorce is a remedy for the innocent against the guilty; hence if both parties are equally at fault, a divorce will not be granted. This is known as the doctrine of recrimination, and rests upon the equitable maxim that he who comes into equity must come with clean hands; but the rule is not infrequently relaxed on grounds of public policy or the peculiar exigencies of the case, and comparative rectitude is considered.” 19 C. J., Divorce, § 219, p. 93.
¶12 The above rule has twice been expressly approved by this court. Condit v. Condit, 115 Or. 481, 237 P. 360; McElwee v. McElwee, 171 Or. 462, 138 P. (2d) 208.
¶13 Turning to considerations of public policy, I question the wisdom of applying the normally wholesome maxim of clean hands as if it were a rule of property law. Divorce is not a lawsuit between two parties. It involves the wrongs of plaintiff and defendant, but it affects the rights of innocent children and the vital interests of society. In these matters, I think the courts are still controlled by mores, now discarded, of generations long since dead. We need an injection of realism into the law of domestic relations. When husband and wife come to the parting of the ways, they are no longer bound together by a strong, if not puritanical, public condemnation of divorce. They part. Then *424 some court, by a procedure which is often little more than a formality, confers its blessing upon the new freedom by granting a divorce. The court and the community appear to agree that the public welfare is served by freeing from the bonds of matrimony one who has been subjected to cruel and inhuman treatment. But if each spouse has subjected the other to such treatment and if the facts are made to appear, the court dooms both to the unhappy bonds and burdens of such a life — married in law, divorced in fact.
¶14 It is at this point that I think considerations of public policy are of more importance than legal rules of thumb. It is a truism to say that the sanctity of the home is the basis of Christian civilization, but I can not see why the law should be so concerned to maintain the marriage status, and theoretically the home, when both spouses are at fault, while granting wholesale dissolution of marriages when but one is at fault. The misconduct of both parties is often the result of an unfortunate incompatibility. In such a case, the legal recognition of a factual separation may restore both parties to useful and wholesome living.
¶15 Any judge who has had wide experience on the trial bench will concede that in divorce cases, theory and practice are as widely separated as the poles. I suppose that ninety-nine percent of divorces are granted on a routine ex parte hearing after the defendant has failed to appear, or has entered a general appearance and refused to plead further. In legal theory, the proceeding is an adversary action, but in a large proportion of eases, both parties are content that the divorce be granted. Frequently acquiesence reaches the verge of collusion. It has been my observation that when a divorce is contested it is seldom because the defendant *425 hopes, or expects, that the home can be kept intact if the decree is denied. The bitter contests almost invariably involve the adjustment of property rights or the custody of children.
¶16 If, in the multitude of default divorce cases the courts were to insist upon a bilateral disclosure of the real controversy and of mutual fault and then were sternly to apply the doctrine of pari delicto in those cases, as it does in the few instances of contest, the entire divorce system, as it now exists in fact, would become unrecognizable.
¶17 In cases of mutual fault, I think the court should be guided by two paramount considerations in determining whether to invoke the rule of pari delicto. It should consider, first, the welfare of the children, if any, and, second, what will be the probable effect on the parties and on society in general, if the divorce is denied. If, at the time of the trial, a separation has, in fact, taken place and there is no reasonable probability of a reconciliation, then we may be fairly sure that denying the divorce will not result in the reestablishment of the home. Again, if a definite separation has occurred and thereafter charges and countercharges are hurled at both litigants in the course of a contested divorce suit, so much bitterness is likely to be engendered that the possibility of reestablishing even the forms of normal domestic life in the same household will be utterly destroyed.
¶18 There may be instances in which persons with an enlightened sense of parental duty will reestablish a home if divorce be denied them in a contested suit and will carry on for the benefit of their children. If that result should appear to be within the realm of probability and the parties appear to be about equally at *426 fault, perhaps a court would be justified in denying a divorce in the hope that the home already broken might be mended, but I have never heard of such a case. If, in the case of mutual fault, the court finds that denial of the divorce will not result in the reestablishment of the home for the benefit of the children, then a serious problem of public policy arises. Assuming that father and mother will continue to live apart, is it for the good of society that the court should adjudge that they must forever remain married in law, when they are irrevocably unmarried in fact?
¶19 The fact that one or both parties to a marriage may have given the other one ground for divorce does not necessarily prove the offender to be of either a vicious or criminal disposition. If it did, the solution would be more simple. The causes of marital unhappiness and misconduct are often subtle and deep-seated and are better known to the social worker or to the psychiatrist than to the judge. I am convinced that in many, though of course not in all, instances the interests of the children, of society at large, and of the parties themselves would be better served if the courts were to exercise more cautious circumspection in denying relief to a seriously wronged spouse on the ground of pari delicto.
¶20 By granting a divorce in such a case, the court would be recognizing the existence of facts over the continuation of which the law has no effective control, and it could then exercise to the fullest an informed discretion as to the custody of the children, awarding them .to the parent most likely to serve them well, since it can not award them to both.
¶21 The opinion of the court in the case at bar is supported by precedent in this and other jurisdictions. I *427 have no criticism of it except to say that, in my opinion, the rules and practices in divorce litigation must be brought more nearly into harmony with the realities of life in the respects indicated. The trend of thought runs in this direction and will, I believe, ultimately prevail. The pending case is a close one, but I would grant a divorce to the plaintiff because I believe the defendant was guilty of cruelty; because I believe the plaintiff’s fault is the lesser; and because I see no prospect of reconciliation between the parties in any event. I would then trust to the power and discretion of a court of equity, now and in the future, to determine and, if need be, to alter, the custody of the children with an eye single to their welfare.