Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other- Action Founded Upon Adultery - As to Non-access
Civil Practice Law and Rules 4502 which declares a spouse incompetent to testify against the other spouse upon the trial of an action founded on the allegation of adultery, renders a husband incompetent to give testimony of non-access in support of his cause of action for divorce based upon adultery. He may not prove his allegations of adultery by showing the birth of a child and the fact that he did not have access to his wife.[1] In the absence of statute, neither husband nor wife is competent to prove non-access during the marriage, whatever may be the form of legal proceedings, or whoever the parties may be.[2] This rule, which excludes the testimony of non-access by a spouse, is aimed at preventing the children of a marriage from being declared illegitimate.[3] However, the testimony of non-access during any period other than that in which the child might have been conceived does not touch the issue of paternity and therefore does not contravene any exclusionary rule.[4] Thus, a husband may testify as to non-access where a child was born more than three years after the granting of a foreign judgment of divorce. [5]
The statute is not limited in terms, nor can it be limited in effect, to actions for a divorce or to those parts of actions between husband and wife which have divorce as an object. The incompetency of one spouse to testify against the other extends to every cause of action, where the parties to the marriage are adverse parties to the action and where the relief sought is to be founded upon adultery. Since illegitimacy is necessarily founded upon adultery, the statute renders the husband incompetent to testify upon this branch of the case as well as upon the issues relating directly to the divorce, if those issues are separable at all. Legitimacy is one of the issues in the action for divorce between husband and wife and is incidental to the main determination.[6]
[1] Taylor v Taylor (1908) 123 App Div 220, 108 NYS 428; Benti v Benti (1946, Sup) 62 NYS2d 239; Schacht v Schacht (1945, Sup) 53 NYS2d 636; Dellaria v Dellaria (1944) 183 Misc 832, 52 NYS2d 607; Amato v Amato (1943, Dom Rel Ct) 45 NYS2d 371; Haynes v Haynes (1943, Sup) 43 NYS2d 315; Admire v Admire (1943) 180 Misc 68, 42 NYS2d 755.
[2] V. v. V., 179 Misc 970, 40 NYS2d 579 (1943).
[3] Urquhart v Urquhart (1949) 196 Misc 664, 92 NYS2d 484, affd 277 App Div 752, 97 NYS2d 200.
[4] Urquhart v Urquhart, supra.
[5] Urquhart v Urquhart, supra.
[6] Admire v Admire, 180 Misc. 68, 42 N.Y.S.2d 755 (Sup 1943)
Civil Practice Law and Rules 4502 which declares a spouse incompetent to testify against the other spouse upon the trial of an action founded on the allegation of adultery, renders a husband incompetent to give testimony of non-access in support of his cause of action for divorce based upon adultery. He may not prove his allegations of adultery by showing the birth of a child and the fact that he did not have access to his wife.[1] In the absence of statute, neither husband nor wife is competent to prove non-access during the marriage, whatever may be the form of legal proceedings, or whoever the parties may be.[2] This rule, which excludes the testimony of non-access by a spouse, is aimed at preventing the children of a marriage from being declared illegitimate.[3] However, the testimony of non-access during any period other than that in which the child might have been conceived does not touch the issue of paternity and therefore does not contravene any exclusionary rule.[4] Thus, a husband may testify as to non-access where a child was born more than three years after the granting of a foreign judgment of divorce. [5]
The statute is not limited in terms, nor can it be limited in effect, to actions for a divorce or to those parts of actions between husband and wife which have divorce as an object. The incompetency of one spouse to testify against the other extends to every cause of action, where the parties to the marriage are adverse parties to the action and where the relief sought is to be founded upon adultery. Since illegitimacy is necessarily founded upon adultery, the statute renders the husband incompetent to testify upon this branch of the case as well as upon the issues relating directly to the divorce, if those issues are separable at all. Legitimacy is one of the issues in the action for divorce between husband and wife and is incidental to the main determination.[6]
[1] Taylor v Taylor (1908) 123 App Div 220, 108 NYS 428; Benti v Benti (1946, Sup) 62 NYS2d 239; Schacht v Schacht (1945, Sup) 53 NYS2d 636; Dellaria v Dellaria (1944) 183 Misc 832, 52 NYS2d 607; Amato v Amato (1943, Dom Rel Ct) 45 NYS2d 371; Haynes v Haynes (1943, Sup) 43 NYS2d 315; Admire v Admire (1943) 180 Misc 68, 42 NYS2d 755.
[2] V. v. V., 179 Misc 970, 40 NYS2d 579 (1943).
[3] Urquhart v Urquhart (1949) 196 Misc 664, 92 NYS2d 484, affd 277 App Div 752, 97 NYS2d 200.
[4] Urquhart v Urquhart, supra.
[5] Urquhart v Urquhart, supra.
[6] Admire v Admire, 180 Misc. 68, 42 N.Y.S.2d 755 (Sup 1943)
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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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