COMPENSATIO CRIMINIS - The Law Mind Legal Dictionary

COMPENSATIO CRIMINISAuthored

The Law Mind • 787 words

Definition

Compensatio criminis (Latin: "set-off of crime or guilt") is a defense in divorce proceedings by which the respondent answers a charge of marital fault by alleging that the complainant is guilty of the same or a similar offense. The doctrine operates as a bar to relief: a party who has committed the same wrong cannot obtain a divorce on the strength of the other party's identical misconduct. In practice, it functions as an equitable offset — one fault canceling the other — leaving the court without grounds to grant the divorce to either party.

The defense is most closely associated with adultery suits, where the respondent charged with adultery demonstrates that the complainant has committed adultery as well, but the principle extended to other fault grounds recognized in a given jurisdiction's divorce law.

Common Confusion

Compensatio criminis is frequently treated as interchangeable with recrimination, and the historical dictionaries themselves blur the line, with Burrill defining compensatio criminis as simply "the plea of recrimination." The terms are closely related but not identical. Recrimination is the broader procedural concept — the countercharge itself — while compensatio criminis is the substantive doctrine that gives the countercharge its legal force: that equivalent guilt on both sides offsets the complainant's claim. A respondent who recriminates is invoking compensatio criminis as the theory behind the defense. Researchers should expect the terms to be used interchangeably in older treatise and case law sources and should search for both.

Why It Matters in Research

This term appears almost exclusively in historical divorce law materials and will be largely invisible in post-1970 sources. The rise of no-fault divorce — beginning with California's Family Law Act of 1969 and spreading throughout the United States over the following two decades — eliminated the fault-based framework that made compensatio criminis a viable defense. Modern divorce law does not require proof of marital misconduct to obtain dissolution, so the doctrine has no contemporary operational context in American family law. Researchers working in nineteenth- or early twentieth-century domestic relations materials will encounter it regularly.

The key research trap is temporal: sources before and after the no-fault revolution are not interchangeable. A treatise from 1880 treating compensatio criminis as settled doctrine reflects a world in which divorce required proof of fault and bars to relief had real bite. A post-1970 source may mention it only historically or in the context of jurisdictions that retained fault elements for limited purposes such as property division or alimony.

Jurisdictional variation in the pre-no-fault era matters as well. The doctrine was incorporated into civil law-influenced codes, as Bouvier notes, making it particularly relevant for Louisiana materials and other jurisdictions with mixed legal heritage. Common law jurisdictions applied recrimination principles through case law rather than codification, producing different evidentiary textures in the sources.

Researchers tracing divorce reform debates will find compensatio criminis cited as an example of the technical rigidities critics sought to dismantle — a doctrine that could trap parties in dead marriages because each had wronged the other equally.

Historical Dictionary Support

The three shelf sources agree on substance with minimal divergence. All three define the term around the same core: a respondent in a divorce action defeats the complainant's claim by showing the complainant committed the same offense. Black's and Burrill are nearly identical in phrasing, both treating the concept as synonymous with "the plea of recrimination." Bouvier adds the most substantive content, explaining the underlying equity rationale — that a party who has violated the marital contract cannot complain of the other's violation — and noting incorporation into civil codes, which is a useful signal for jurisdictional research.

Burrill's cross-reference to Shelford's Marriage and Divorce and Kent's Commentaries points researchers to the primary treatise sources for the doctrine in the Anglo-American tradition. Neither Black's nor Bouvier supply that navigational detail.

What none of the historical sources address is the doctrine's eventual obsolescence. They write from within a fault-divorce world and have no occasion to anticipate the no-fault revolution. Researchers should treat these entries as authoritative for their period and supplement with twentieth-century family law scholarship to understand how and when the doctrine was displaced.

Jurisdictional Note

The doctrine was most formally developed in jurisdictions following civil law traditions, where it was codified rather than left to judicial construction. In common law American jurisdictions, courts applied functionally equivalent recrimination principles through equity. After no-fault divorce statutes spread nationally from the 1970s onward, compensatio criminis became a historical artifact in most U.S. jurisdictions, though fault may retain relevance in some states for ancillary matters such as alimony.

COMPENSATIO CRIMINISmain

Black's Law Dictionary • 1891

(Set-off of crime or guilt.) In practice. The plea of recrimination in a suit for a divorce; that is, K that the complainant is guilty of the same kind of offense with which the respondent is charged.

COMPENSATIO CRIMINISmain

Bouvier's Law Dictionary • 1928

The compensation or set-off of one crime against another: for example, in questions of divorce, where one party claims the divorce on the ground of adultery of his or her companion, the latter may show that the complainant has been guilty of the same offence, and, having himself violated the contract, cannot complain of its violation on the other side. This principle is incorpo- rated in the codes of most civilized nations. See 1 Hagg. Cons. 144; 1 Hagg. Eccl. 714; 2 Paige, Ch. 108; 2 D. & B. 64; Bishop, Marr. & D. SS 393, 394. COMPENSATION (Lat. compendere, to balance). In Chancery Practice. Something to be done for or paid to a per- son of equal value with something of which he has been deprived by the acts or negli- gence of the party so doing or paying. When a simple mistake, not a fraud, effects a contract, but does not change its essence, a court of equity will enforce it, upon making compensation for the error. "The principle upon which courts of equity act," says Lord Chancellor Eldon, "is by all the authorities brought to the true standard, that though the party had not a title at law, because he had not strictly complied with the terms so as to entitle him to an action (as to time, for instance), yet if the time, though introduced (as some time must be fixed, where something is to be done on one side, as a consideration for something to be done on the other), is not the essence of the contract, a material object, to which they looked in the first conception of it, even though the lapse of time has not arisen from accident, a court of equity will compel the execution of the contract upon this ground, that one party is ready to perform, and that the other may have a performance in substance if he will permit it;" 13 Ves. Ch. 287. See 10 id. 505; 13 id. 73, 81, 426; 6 id. 575; 1 Cox, Ch. 59. In Civil Law. A reciprocal liberation between two persons who are both creditors and debtors of each other. Est debiti et crediti inter se contributio. Dig. 16. 2. 1. It resembles in many respects the common-law set-off. The principal difference is that a set-off must be pleaded to be effectual; whereas com- pensation is effectual without any such plea. See 2 Bouvier, Inst. n. 1407. It may be legal, by way of exception, or by reconvention; 8 La. 158; Dig. 16.2; Code, 4. 31; Inst. 4. 6. 30; Burge, Suret. b. 2, с. 6, p. 181. It takes place by mere operation of law, and extinguishes reciprocally the two debts as soon as they exist simultaneously, to the amount of their respective sums. It takes place only between two debts having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and demandable. It takes place whatever be the cause of the debts, except in case, first, of a demand of restitution of a thing of which the owner has been unjustly deprived; second, of a demand of restitution of a deposit and a loan for use; third, of a debt which has for its cause aliments declared not liable to seizure. La. Civ. Code 2203-2208. See 11 La. Ann. 520; 16 id. 181. As to taking property, see EMINENT DO-

COMPENSATIO CRIMINISmain

Burrill's Law Dictionary • 1867

Lat. (Set-off of crime or guilt.) In practice. The plea of recrimination in a suit for a divorce; that is, that the complainant is guilty of the same kind of offence with which he or she charges the defendant. Shelford, Marr. & Div. 440. 2 Kent's Com. 100. See Recrimination.

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