I. In determining the validity of a statutory discrimination or classification in an equal protection case, this Court has recognized two separate standards for testing constitutionality prescribed by the Supreme Court of the United States. See Husband M. v. Wife M., Del.Supr., 321 A.2d 115 (1974). If a case involves "suspect classifications", or touches upon "fundamental interests", legislative discriminations are subjected to a "strict scrutiny", barring the application of the usual presumption of constitutionality and requiring the showing of a "compelling state interest" which necessitates the law. However, in an equal protection case in which neither fundamental rights nor suspect classifications are involved, the traditional equal protection "rationality" standard is applied, permitting the ordinary presumption of constitutionality. Justice v. Gatchell, Del.Supr., 325 A.2d 97 (1974).

J.D.P. v. F.J.H., Del.Supr., 399 A.2d 207, 210 (1979). Cf. M. v. M., Del.Supr., 321 A.2d 115, 118-19 (1974). Section 1504(a) of Title 13 of the Delaware Code provides in relevant part:

In order to carry out the legislative intent that there be a full and final settlement of marital and financial ties, the Family Court was given broad authority to "finally and equitably untangle and apportion a complex of marital property." M v. M, Del.Supr., 321 A.2d 115, 119 (1974). 13 Del. C. § 1513 provides in part:

Even though remarriage is an event which must be considered in any divorce settlement, Winter v. Winter, N.J.Super., 162 N.J.Super. 456, 393 A.2d 593, 598 (1978), Hamblett v. Lewis, N.H. Supr., 114 N.H. 258, 319 A.2d 629 (1974), and perhaps alluded to in § 1513(a)(3), (4) and (5), total divestment of property upon such considerations, especially when cohabitation is equated with remarriage, sounds peculiarly like alimony or support and becomes improper in relation to the spectrum of considerations in a division of marital assets. Husband M v. Wife M, Del.Supr., 321 A.2d 115 (1974). See e.g. 13 Del. C. § 1512 as to factors relevant to an alimony award.

Preliminarily, except for one matter hereafter discussed and considering primarily the economic potential of the parties, we have no difficulty with the discretionary division of property made by the Family Court. There is a wide discretion vested in Family Court to assign marital property to either or both of the spouses "in such proportions as the Court deems just." 13 Del. C. § 1513(a); J. D. P. v. F. J. H., Del.Supr. en banc, 399 A.2d 207, 210 (1979); M v. M, Del.Supr., 321 A.2d 115 (1974). Moreover, in this case, we find the husband's claim, raised for the first time on appeal, that certain money received by the wife from her mother constituted marital property, comes too late. It is directly contrary to the stipulation made in the Family Court that such money was not marital property and thus was clearly not fairly presented to the Trial Court.

Construction of § 1513, therefore, must be undertaken with a view toward mitigating the potential harm to each party after the divorce. It is pertinent to note, at this point, that the current law is substantially different from the predecessor statute which was construed in M. v. M., Del.Supr., 321 A.2d 115 (1974). Unlike the prior law, § 1513, on its face, does not favor the wife over the husband.

Rather "equitably" refers to the power of the Court to divide property according to justice and fairness. See M. v. M., Del.Supr., 321 A.2d 115 (1974). It is contended by the respondent that since 13 Del. C. § 1502 provides that the Delaware Divorce and Annulment Act should be liberally construed to effectuate amicable settlements and mitigate potential harm, and that [citing D v. D, Del.Super., 20 A.2d 139 (1941)] since Delaware Courts have incidental powers to effectuate the jurisdiction of the Court, the power of the Family Court to create a trust of marital property can be inferred from the Statute.

Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458, cert. denied, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1974). Bugden v. Bugden, 225 Ga. 413, 169 S.E.2d 337, cert. denied, 396 U.S. 1005, 90 S.Ct. 558, 24 L.Ed.2d 497 (1969); M. v. M., 321 A.2d 115 (Del.Supr. 1974); Hendricks v. Hendricks, 535 S.W.2d 668 (Tex.Civ.App. 1976). The United States Supreme Court has upheld the constitutionality of a Florida statute granting widows an annual property tax exemption of $500, but offering no analogous benefit for widowers.

As a plurality decision, it is enlightening, but not controlling. Husband M v. Wife M, 321 A.2d 115 (Del. 1974). Moreover, as pointed out by the dissent in Frontiero, it is inappropriate to hold sex suspect while the Equal Rights Amendment, which would render the decision moot, is still pending.

On appeal, the husband now contends that, under these circumstances, the Superior Court lacked both in personam jurisdiction over him and the requisite in rem jurisdiction over the real property for the property division order. We hold that by reason of the Superior Court's jurisdiction over the marriage res, Fritz v. Fritz, Del.Supr., 187 A.2d 348 (1962) and marital property of the parties, 13 Del. C. § 1513; M. v. M., Del.Super., 321 A.2d 115 (1974), the Court had in rem jurisdiction over the parties' jointly-held marital residence in Delaware sufficient to support the order entered in this case. Under the circumstances of this case, no valid purpose would be served by requiring an attachment of the property, or a specification in the complaint of the only real estate owned by the parties in Delaware, as a requisite of in rem jurisdiction.