¶1 (dissenting).
¶2 When the legislature added incompatibility as a ground for divorce to those already named in the statute, it greatly facilitated the ease with which a divorce from the bonds of matrimony may be secured. Indeed, in practical application statutory authority to procure a divorce upon this ground brings us to the very border, if not into the actual domain, of trial marriage. Nevertheless, wisdom of the policy which authorizes divorce on this ground is for the legislature, not this Court, to decide.
¶3 My objection to the prevailing opinion is that it pioneers the subject of divorce beyond anything attempted by the legislature itself. Recrimination as a defense to a bill for divorce came to us with our adoption of the common law in 1876 and as a part of that law. L.1875-1876, c. 2, § 2, 1941 Comp., § 19-303. The statute on incompatibility says nothing about doing away with recrimination as a defense. Under the weight of authority, it exists as such except where denied by express statutory enactment. 17 Am.Jur. 267 and 27 C. J.S., Divorce, § 67, p. 623. As a part of the commori law its repeal should rest on express statutory or constitutional declaration or arise by necessary implication. 15 C.J.S., Common Law, § 12, p. 619; Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942. Here there is neither.
¶4 Indeed, in Chavez v. Chavez, 39 N.M. 480, 50 P.2d 264, 101 A.L.R. 635, decided since adoption of the incompatibility statute, we expressly upheld recrimination as a defense to a pica for divorce, reaffirming the correctness of that decision a few years later in Tenorio v. Tenorio, 44 N.M. 89, 105, 98 P.2d 838, 848, in language, as follows:
¶5 “It is argued under another claim of error that ‘recrimination is not a defense to divorce in this state’. But it is, unless the court wishes to overrule Chavez v. Chavez, 39 N.M. 480, 50 P.2d 264, 101 A.L.R. 635, and it is not now so disposed.”
¶6 We expressly declined to pass upon the question in Poteet v. Poteet, 45 N.M. 214, 114 P.2d 91, 96, in stating: “We need not now decide whether recrimination is a defense in a divorce action.” We already had held that it is in the Chavez and Tenorio cases a short time before.
¶7 The far reaching effect of today’s holding on the law of marriage and divorce in New Mexico is easy to see. The statutes authorize divorce on ten separate grounds. 1941 Comp., §§ 25-701 and 25-710. Incompatibility is one of the ten and came in along with incurable insanity, in 1933. L. 1933, c. 54, § 1; L.1933, c. 27, § 1. Thus it is that incompatibility, latest to arrive as a ground of divorce, if freely employed, will eliminate all others save possibly incurable insanity as a basis for divorce, by giving it into the hands of the chancellor to ignore the defense of recrimination and .award a divorce, if so moved by the irreconcilable nature of the family differences, even though the incompatibility found may have arisen over the commission by one of the spouses of a capital sin of the marriage relation. It is doubtful if the legislature enacting the statute ever visualized that such a possibility could result therefrom.
¶8 In my opinion, the trial court erred in declining to entertain the defense of recrimination. Its decree should be reversed and the cause remanded for a new trial at which the issues on the defense of recrimination shall be found and a decree entered conformably thereto. The majority concluding otherwise, I dissent.