Inlaw,recrimination is adefense in an action fordivorce in which the accused party makes a similar accusation against theplaintiff. To put it simply, it is the defense of "you, too."
Recrimination was generally considered byfamily law experts to be one of the most dysfunctional and illogical aspects of the old fault-based divorce system incommon law countries. For example, in the context of amarriage where the marital relationship has collapsed to the point that both spouses are openly committingadultery, the assertion by either spouse of this defense would prevent a divorce even though thefamily unit is clearly no longer capable of functioning. As one law professor later explained: "In such a case of mutual fault, the court was bound to withhold its decree, thus visiting the parties with the 'Sartresque punishment of remaining together and hating it'".[1]
As a result, the defense was formally abolished by statute in manyjurisdictions when they converted to ano-fault divorce regime.
New York law is one of very few jurisdictions that retain this defense.[2]
The corollary principle of comparative rectitude ameliorated the effects of the recrimination doctrine by holding that if the offenses were of entirely different orders of seriousness, the spouse guilty of the lesser fault was still entitled to relief.
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