Admissibility of Evidence - Privilege - Testimony of One Spouse Against the Other – Actions for Divorce, Separation or Annulment - Confidential Communications.
Civil Practice Law and Rules 4502 provides that a husband or wife may not be compelled, or without the consent of the other, if living, allowed to disclose a confidential communication made by one to the other during the marriage. [1]
Thus, a letter from a husband to his wife confessing adultery is not admissible in evidence, since it is a confidential communication from husband to wife and induced by the marital relation.[2] Where letters from a correspondent to a husband indicating his adultery are given to the wife by the husband, not for the purpose of enabling her to get a divorce, the letters are a confidential communication or transaction induced by the marital relation and are not admissible in evidence in an action for divorce.[3]
Civil Practice Law and Rules 4502 was not designed to forbid inquiry into the personal wrongs committed by one spouse against the other, nor was it intended to label confidential a communication aimed at destroying the marital relation and protect from disclosure an unfounded charge of adultery, or a declaration by a wife that she loves another man, had improper relations with him and plans to leave home and live with him.[4]
[1] Civil Practice Law and Rules 4502.
[2] Lake v Lake (1946, Sup) 60 NYS2d 105
[3] Lake v Lake, supra.
[4] Poppe v Poppe (1957) 3 NY2d 312, 165 NYS2d 99, 144 NE2d 72 (action for separation).
Civil Practice Law and Rules 4502 provides that a husband or wife may not be compelled, or without the consent of the other, if living, allowed to disclose a confidential communication made by one to the other during the marriage. [1]
Thus, a letter from a husband to his wife confessing adultery is not admissible in evidence, since it is a confidential communication from husband to wife and induced by the marital relation.[2] Where letters from a correspondent to a husband indicating his adultery are given to the wife by the husband, not for the purpose of enabling her to get a divorce, the letters are a confidential communication or transaction induced by the marital relation and are not admissible in evidence in an action for divorce.[3]
Civil Practice Law and Rules 4502 was not designed to forbid inquiry into the personal wrongs committed by one spouse against the other, nor was it intended to label confidential a communication aimed at destroying the marital relation and protect from disclosure an unfounded charge of adultery, or a declaration by a wife that she loves another man, had improper relations with him and plans to leave home and live with him.[4]
[1] Civil Practice Law and Rules 4502.
[2] Lake v Lake (1946, Sup) 60 NYS2d 105
[3] Lake v Lake, supra.
[4] Poppe v Poppe (1957) 3 NY2d 312, 165 NYS2d 99, 144 NE2d 72 (action for separation).
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.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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Joel R. Brandes Consulting Services, Inc.
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Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
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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