Editorial Advisory Board: End the need for corroborating testimony in uncontested divorces

Requiring proof from actual witnesses can be a good thing. For example, under Article III, Section 3 of the U.S. Constitution, two witnesses must swear from personal knowledge that someone accused of treason has committed acts sufficiently grievous to label him or her a traitor.

But there is one instance when witness testimony should no longer be mandated – proving that a couple in an uncontested divorce has been living separate and apart for a year. At present, Maryland law declares, “A court may not enter a decree of divorce on the uncorroborated testimony of the party who is seeking the divorce.” In practice, this means that someone must be hauled into court to swear that the pair has not cohabitated. In other words, they have not slept together. To us, this provision no longer serves a useful purpose, if it ever did.

When a married couple has concluded that they cannot remain spouses, what difference does it make that they might have had sex during the preceding year? Suppose they went out to dinner one day and, after an amicable discussion about dividing their property, vestiges of affection lead them into the bedroom? Does that mean the no-habitation clock must start running anew the next morning?  As we see it, no public policy is furthered by insisting on abstinence during this emotionally wrenching period in a divorcing couple’s lives.

And how many witnesses can absolutely, positively state that there really were no conjugal relations? The friend under oath cannot be sure that the couple didn’t sneak out to a motel one night to enjoy each other’s company, though he or she will swear that such liaisons never happened.  Requesting close friends or family members, such as the couple’s children, to swear that there had been no sexual relations can be embarrassing, even humiliating. A client of one member of this board had to ask her husband’s girlfriend to be her witness; she had no one else to call on. In almost all cases, personal testimony about non-cohabitation is necessarily incompetent, because it supposes an intimacy and constancy of knowledge that is impossible to have under any circumstances.

What if the divorcing couple did exactly that the week before the hearing to say goodbye to their joint life in the most intimate way? Under current law, the divorce must be put off a year. However, if the couple decided to have their goodbye night immediately after the hearing, it would have no effect on the result.

In our view, it doesn’t matter whether the couple slept together during the year preceding the dissolution of their marriage. If the parties have decided with clear heads that they can no longer maintain their marriage, sexual contact between them should not destroy their attempts to build the separate lives they both want.

Legislation before the General Assembly would end the requirement that uncontested divorces be corroborated by third-party witness testimony. Slightly different bills have passed in both the House of Delegates and the Senate, but the sponsors have agreed to combine provisions of each of the bills. We support this change in the law.

Some fear that abandoning the witness requirement would make divorce easier. In our view, however, this mandate is an unnecessary impediment to those who are truly unhappy in their life together. It does nothing to save marriages.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

John Bainbridge Jr.

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Ericka King

Stephen Meehan

C. William Michaels

William Reynolds

Norman Smith

Tracy L. Steedman

H. Mark Stichel

Ferrier R. Stillman

Anwar L. Young

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.