The new statute declares the very ground for a divorce a criminal act. It is intended to put a stop to collusive divorces. The court calendar in New York and Kings Counties is overcrowded with uncontested divorce cases; many of them are instituted where either the husband or the wife has furnished the other with the necessary evidence of adultery and an agreement has been made between the parties that the alleged offender should not contest the charge. In these cases the court, on detecting such collusion, could merely refuse a divorce; at present the court may direct a criminal proceeding to be instituted against the alleged offender.
The divorce cases in this State may be divided into three classes. Firstly, we find those cases which are contested. These are comparatively few. Take the instance of a husband seeking a divorce from his wife on the ground of her adultery. She denies the charge and defends the action. Under the new statute the husband may also set into motion the machinery of a criminal court against her. Such proceedings may even be oppressive. The Police Court Magistrate, having information before him, must issue a warrant and hold the person charged for trial. Thus, a criminal proceeding may be conducted simultaneously with the civil suit for a divorce; it may also be instituted before or after the divorce action. A judgment in the divorce case in favor of the complainant is no proof of the crime in the criminal court; and, under the rules giving the defendant the benefit of a reasonable doubt, it may not be possible to obtain a conviction although a civil court may find the defendant guilty of adultery.
Again, a vindictive wife will not free her husband of the marital relations though she can readily do so on the ground of his adultery; but she will seek to have her husband convicted of the crime. These are instances were the new statute may be made subservient to private personal ends. The second class of cases arises where there is no collusion between the parties; one is living in adulterous intercourse or has committed an act of adultery.
In such a case a divorce should be obtained by the innocent party. Take the instance where the husband and wife do not and cannot live together; the home is broken up, there is no chance for a reunion; it is better for them, and their children, if there are any, that the bonds of matrimony should be dissolved. Yet, in such a case a divorce will be very difficult and sometimes impossible. The adulterer will fret criminal prosecution. He may be held upon the initiative of the court or of any person having a private grievance against him.
He will leave the jurisdiction of the court, will avoid process thereof, and will make every possible obstacle to the divorce action, which in the absence of the new statute, he would not contest. It is true that the State is the guardian of the home and should preserve its sanctity. Our State is the most difficult for divorces. It has established the hardest ground for divorce. There is, then, no reason for a statute that makes it difficult or impossible to get a divorce where there exists the legal ground therefore.