For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
This is an uncontested divorce action stemming from defendant's alleged desertion of plaintiff in 1963. The trial judge was satisfied that defendant's desertion was established, but nevertheless, denied the divorce, holding that plaintiff's adultery in 1966 operated to bar her divorce under the doctrine of recrimination. We granted appellant's motion for certification prior to argument in the Appellate Division.
The defendant-husband, age 32, and the plaintiff-wife, age 25, were married on April 11, 1959. Their stormy marriage lasted until defendant deserted plaintiff on September 22, 1963, never to return. The two children born of this union are presently separated, one in the custody of defendant and the other in the custody of plaintiff's mother. Prior to his desertion, defendant also sired three illegitimate children by his wife's sister.
After plaintiff's cause of action for desertion had matured she began to have an affair. She admittedly had illicit sexual relations during the latter part of 1966, resulting in the birth of a child on May 17, 1967. Both plaintiff and the father of that child have expressed a desire to marry and legitimize the offspring of their affair.
The issue before us is whether the trial judge erred in raising on his own motion plaintiff's recriminatory acts of adultery thus barring a decree of divorce.
We synopsize the history of recrimination. As first found in Roman law, recrimination was used as a means for adjusting property rights between the spouses in the actio rei uxoria. The doctrine was wholly inoperable as a device for denying divorce because divorce at that time was not a judicial function. Discontinuance of the marriage depended entirely upon the discretion of the husband. See discussion in Forster v. Forster, 161 Eng. Rep. 504, 506 (Consist. 1790).
An excellent summation of the development of recrimination from this point to its emergence in American law is provided by Beamer, "The Doctrine of Recrimination in
Divorce Proceedings," 10 U. Kan. City L. Rev. 213, 243 (1942) [hereinafter Beamer].
In New Jersey, evidence that the doctrine of recrimination has been uniformly utilized to deny the grant of a divorce where both parties have violated the marriage contract is found as early as 1863. See Marsh v. Marsh, 16 N.J. Eq. 391 (Ch. 1863) (where it was noted that the requirement of specificity in pleading applies to the bill charging adultery as well as to the answer setting it up by way of recrimination). In Adams v. Adams, 17 N.J. Eq. 324 (Ch. 1866), the court recognized that desertion would not be a defense to adultery in the English ecclesiastical courts. This observation was not considered controlling, however, and since desertion, cruelty and adultery were placed on the same footing in New Jersey with respect to their effect on the marriage contract, Chief Justice Beasley, sitting as Master, suggested that any one of the three should be a defense to the other. 17 N.J. Eq., at 328. The Chief Justice did not acknowledge, however, a distinguishing feature of the ecclesiastical courts -- they were not empowered to grant an absolute divorce, but were limited to divorce a mensa et thoro. Recrimination was used by these courts as an adjudication of property rights similar to the actio rei uxoria of Roman times. Although the ecclesiastical courts could not compel a guilty husband to restore his guilty wife's property, by using recrimination as a bar to a divorce from bed and board, they could require a husband to either cohabit with his wife or agree on a private separation settlement. Beamer, 10 U. Kan. City L. Rev., at 227-28.
Propelled by Adams, recrimination in New Jersey soon developed into a mechanical and absolute bar, the application of which was required once the proofs established its pertinence.*fn1 See, e.g., Sheehan v. Sheehan, 22 N.J. Super. 326
(App. Div. 1952) (where in granting plaintiff's motion for voluntary dismissal the court indicated that proof of plaintiff's adultery would constitute a complete bar to her action for divorce based on her husband's cruelty); Rapp v. Rapp, 67 N.J. Eq. 236 (Ch. 1904) (where in an uncontested case the recriminatory act of ...