The sun., 1899-05-01
Legal Procedure in Divorce Cases.

Legal Procedure in Divorce Cases.
There is only ono ground for absolute
divorce In this State, the marital intldelity
Of the husband or wife. Separations are
granted by our courts on various grounds,
such as cruel and inhuman treatment,
abandonment, or neglect on the part Of tho
husband to provide the wife with proper
support; but the successful plaintiff in a
separation suit is not permitted to marry
again. In case Of absolute divorce our
law permits the marriage Of the party who
succeeds, and prohibits the unfaithful
spouse from marrying again; but this pro-
hbition Is practically Of no effect In city
like New York, from which New Jersey can
be reached in few minutes, and Connecti-
cut In an hour. Once outside the State
lines, the divorced defendant may con-
tract another marriage which the courts Of
New York recognize as valid, although they
could punish the offender II he or she mar
ried again within the limits Of this terri
torial jurisdiction.
A large majority Of the suits which are
instituted for absolute divorce here are un-
defended. In such cases it was formerly
the practice to appoint referee to take
testimony In support Of the allegations Of
the complaint upon whose report the court
rendered Judgment. This practice was
abandoned In Kings county ten or twelve
years ago, when the Supreme Court JUS
tices In Brooklyn determined to hear all
undefended divorce cases themselves in
open court, instead Of sending them to
referees. This method proved SO satisfao-
tory that in 1895 it was extended to the
whole State by the Convention Of Judges
appointed TO revise the general rules of
practice In courts Of record as appears by
the following extract from Rule ~:
I'm an action for divorce or for the annulment
Of msrraae. where the defendant fails to answer.
no reference shall be granted TO take proof OF the
facts stated In tho complaint but before judgment
shall be granted the proof Of such facts must be
made TO the court In open court and copy Of the
evidence taken before the shall be written out
and hled with the Judgment roll"
II this were all that the law provided In re-
spect to undefended divorce cases, the pro-
ceedings would invariably be public. But
Rule ~ contains this additional clause:
The court may. however. ir case the evidence 10
such that the public interest requires that the
animation Of the witnesses should not be public.
parties 70 the action and their counsel and the wit
nesses, and shall order such evidence. when hled
with the clerk sealed mp and exhibited only TO the
parties 30 the action. or some specially Interest,"
cd. By order Of tho court"
This regulation, 1t will be observed,
makes publicity the rule and secrecy the
exception. The evidence In an undefended
divorce case is TO be taken in open court,
unless the public interest requires that 1t
be taken In private. The interest OF the
erly be permitted toltigate their differences
In secret except where the welfare OF the
community will be promoted by allowing
that course to be pursued.
When, however. the defendant In a di-
vorce suit puts In an answer, the rule that
the case shall not be sent to referee does
not apply. Under such circumstances, IL
the answer Is interposed in good faith, the
defendant generally insists upon trial by
jury; but II both parties consent that the
issues be tried by referee, the court may
order q reference. although not to person
chosen by the parties. This course is some
times adopted to insure secrecy. A formal
answer Is put in, where there is really no de-
be referred. The court sanctions the refer
ence and designates the referee. The
public knows nothing Of the proceeding
which goes on in the obscurity OF the
referees Office. The referee reports the
testimony to the court, which thereupon
directs judgment for the plaintiff, and this
Is followed by an order to seal up the
papers and preserve the particulars from
the eyes OF q curious world.
In the opinion Of many lawyers and
Judges 1t is wiser to make public all the
proceedings in matrimonial actions than to
permit secrecy in some cases under cir
cumstances which are sure to arouse sus-
picion that judicial favor has been extended
to individuals from personal consideration
for their feelings rather than to promote
the welfare Of the community. So strongly
does this feeling prevail in England that
divorce cases ara now very rarely heard
In private by the High Court Of Justice.