Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other. - Action founded Upon Adultery - In General
The Civil Practice Law and Rules provide[1] that a person shall not be excluded or excused from being a witness because he or she is the husband or wife of a party.[2] However, the Civil Practice Law and Rules also provides that a husband or wife is not competent to testify against the other in an action founded upon adultery, except to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.[3]
Thus, in a divorce action founded upon adultery a husband and wife are absolutely disqualified and incompetent to testify against each other except to prove the marriage, to disprove the allegation of adultery, or to disprove any proof offered in support of a defense to the action.[4]
The courts are strict in enforcing the statutory prohibition against allowing either spouse to testify against the other except on matters other than those which are expressly excepted in the statute.[5] The word "testify" as used in the statute [6] comprehends an intelligent, active performance in which a person by words or writing, or other comprehensible signs, communicates facts within his own mind to another, and a simple appearance for identification cannot be held to constitute testifying.[7] One spouse is not incompetent to identify the other even in a divorce action.[8]
In a divorce action found upon adultery, the plaintiff is not allowed to testify as to facts tending to prove the cause of action against the defendant based upon adultery.[9]
However, the defendant’s testimony denying the adultery is admissible.[10] The statute[11] has been given a liberal construction in the interests of justice. It has been held that, in disproving the allegation of adultery, the alleged guilty party is not limited to specifically denying the charges of adultery, but may testify to any fact or circumstance within his or her knowledge bearing on whether the act of adultery was committed.[12] For example, he or she may testify to prove connivance or forgiveness on the part of the other spouse.[13]
[1] Civil Practice Law and Rules Rule 4502.
[2] Civil Practice Law and Rules Rule 4512.
[3] Civil Practice Law and Rules Rule 4502.
[4] Johnson v Johnson, 25 App Div 2d 672, 268 NYS2d 403 (2d Dept 1966); Grobin v Grobin, 184 Misc 996, 55 NYS2d 32 (1945); Bandler v Bandler, 187 NYS 358 (Sup 1921).
[5] Grobin v Grobin, 184 Misc 996, 55 NYS2d 32 (1945).
[6] Civil Practice Law and Rules Rule 4502.
[7] Jacobson v Jacobson, 12 NY Civ Proc 198, 14 Daly 255, 8 NYSR 383.
[8] Walsh v Walsh, 25 Misc 2d 441, 208 NYS2d 380 (1960).
[9] Budd v Budd, 55 App Div 113, 67 NYS 43 (1900); Colwell v Colwell, 14 App Div 80, 43 NYS 439 (1897); Punzi v Punzi, 191 Misc 36, 79 NYS2d 620 (1948), affd 275 App Div 766, 88 NYS2d 905; Rosenblum v Rosenblum, 181 Misc 78, 42 NYS2d 626 (1943); Bailey v Bailey, 41 Hun 424 (1886).
Lee v Lee, 51 App Div 2d 576, 378 NYS2d 459 (2d Dept 1976), held that despite the prohibition of Civil Practice Law and Rules Rule 4502 against the husband or wife testifying against the other, and divulging any confidential communication in a divorce grounded on adultery, in a divorce action based upon cruel and inhuman treatment, the prohibition does not apply.
Fritz v Fritz, 88 App Div 2d 778, 451 NYS2d 519 (2d Dept 1982), held that although the husband's admissions of adultery were inadmissible to prove the wife's cause of action based on adultery, they were admissible as part of her cause of action based on cruel and inhuman treatment.
[10] Matthews v Matthews, 53 Hun 244, 6 NYS 589 (1889).
[11] Civil Practice Law and Rules Rule 4502.
[12] Stevens v Stevens, 54 Hun 490, 8 NYS 47 (1889).
[13] O'Hara v O'Hara, 136 App Div 378, 120 NYS 982 (1910); Huntley v Huntley, 73 Hun 261, 26 NYS 266 (1893); Stevens v Stevens, 54 Hun 490, 8 NYS 47(1889).
The Civil Practice Law and Rules provide[1] that a person shall not be excluded or excused from being a witness because he or she is the husband or wife of a party.[2] However, the Civil Practice Law and Rules also provides that a husband or wife is not competent to testify against the other in an action founded upon adultery, except to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.[3]
Thus, in a divorce action founded upon adultery a husband and wife are absolutely disqualified and incompetent to testify against each other except to prove the marriage, to disprove the allegation of adultery, or to disprove any proof offered in support of a defense to the action.[4]
The courts are strict in enforcing the statutory prohibition against allowing either spouse to testify against the other except on matters other than those which are expressly excepted in the statute.[5] The word "testify" as used in the statute [6] comprehends an intelligent, active performance in which a person by words or writing, or other comprehensible signs, communicates facts within his own mind to another, and a simple appearance for identification cannot be held to constitute testifying.[7] One spouse is not incompetent to identify the other even in a divorce action.[8]
In a divorce action found upon adultery, the plaintiff is not allowed to testify as to facts tending to prove the cause of action against the defendant based upon adultery.[9]
However, the defendant’s testimony denying the adultery is admissible.[10] The statute[11] has been given a liberal construction in the interests of justice. It has been held that, in disproving the allegation of adultery, the alleged guilty party is not limited to specifically denying the charges of adultery, but may testify to any fact or circumstance within his or her knowledge bearing on whether the act of adultery was committed.[12] For example, he or she may testify to prove connivance or forgiveness on the part of the other spouse.[13]
[1] Civil Practice Law and Rules Rule 4502.
[2] Civil Practice Law and Rules Rule 4512.
[3] Civil Practice Law and Rules Rule 4502.
[4] Johnson v Johnson, 25 App Div 2d 672, 268 NYS2d 403 (2d Dept 1966); Grobin v Grobin, 184 Misc 996, 55 NYS2d 32 (1945); Bandler v Bandler, 187 NYS 358 (Sup 1921).
[5] Grobin v Grobin, 184 Misc 996, 55 NYS2d 32 (1945).
[6] Civil Practice Law and Rules Rule 4502.
[7] Jacobson v Jacobson, 12 NY Civ Proc 198, 14 Daly 255, 8 NYSR 383.
[8] Walsh v Walsh, 25 Misc 2d 441, 208 NYS2d 380 (1960).
[9] Budd v Budd, 55 App Div 113, 67 NYS 43 (1900); Colwell v Colwell, 14 App Div 80, 43 NYS 439 (1897); Punzi v Punzi, 191 Misc 36, 79 NYS2d 620 (1948), affd 275 App Div 766, 88 NYS2d 905; Rosenblum v Rosenblum, 181 Misc 78, 42 NYS2d 626 (1943); Bailey v Bailey, 41 Hun 424 (1886).
Lee v Lee, 51 App Div 2d 576, 378 NYS2d 459 (2d Dept 1976), held that despite the prohibition of Civil Practice Law and Rules Rule 4502 against the husband or wife testifying against the other, and divulging any confidential communication in a divorce grounded on adultery, in a divorce action based upon cruel and inhuman treatment, the prohibition does not apply.
Fritz v Fritz, 88 App Div 2d 778, 451 NYS2d 519 (2d Dept 1982), held that although the husband's admissions of adultery were inadmissible to prove the wife's cause of action based on adultery, they were admissible as part of her cause of action based on cruel and inhuman treatment.
[10] Matthews v Matthews, 53 Hun 244, 6 NYS 589 (1889).
[11] Civil Practice Law and Rules Rule 4502.
[12] Stevens v Stevens, 54 Hun 490, 8 NYS 47 (1889).
[13] O'Hara v O'Hara, 136 App Div 378, 120 NYS 982 (1910); Huntley v Huntley, 73 Hun 261, 26 NYS 266 (1893); Stevens v Stevens, 54 Hun 490, 8 NYS 47(1889).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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