As divorce attorneys in Charleston, South Carolina, we deal with cases involving allegations of adultery (or other marital misconduct such as physical abuse) and the defense of “condonation.” As discussed in more detail in our article about the impact of adultery in South Carolina (click here to read), adultery is not only a ground for divorce but it bars the offending spouse from receiving alimony. However, if a spouse condones an act of adultery, then that spouse can’t later use the adultery as a bar to paying alimony unless the other spouse repeats the offense.
Proving Condonation in South Carolina
In South Carolina, condonation requires proof of “forgiveness, express or implied, by one spouse for a breach of marital duty by the other” and reconciliation. In most cases, reconciliation can be proved by showing the normal cohabitation of the husband and wife in the family home. If the injured party has full knowledge of the misconduct such as adultery, and the couple resumes or continues living together for “any considerable period of time,” then this act of living together conclusively shows an intention to forgive or condone the marital misconduct. However, even if the parties continue to live together, a lack of sex is a pertinent factor in determining the existence of condonation. For example, in one case the court did not find proof of reconciliation where the husband continued to stay in the home on the advice of his lawyer but the couple didn’t have sex with each other.
How Long Does a Couple Need to Live Together to Prove Condonation?
South Carolina law doesn’t specify exactly what a “considerable period of time” is for purposes of condonation. However, several South Carolina cases give some guidance. For example, continuing to live together for five (5) months is proof of condonation according to two family law cases in South Carolina:
1. In one case the wife continued living with her husband for approximately five months before the couple separated. Our supreme court noted that although the relationship between the couple appeared to have been strained during that time, the evidence of five months’ continued cohabitation convinced the court that the wife condoned the husband’s misconduct.
2. In another case, the court found that the husband condoned the wife’s adultery when the couple continued to live together and voluntarily engage in sexual relations for approximately five months.
Two nights of staying together wouldn’t likely be evidence of condonation. In that case, the evidence was insufficient to prove the husband condoned the wife’s adultery by spending two nights in the home after the wife confessed her adultery when they did not sleep together and there was no agreement to reconcile.
In a recent case, despite continuing to maintain separate bedrooms after the wife admitted adultery, a couple went to marriage counseling twice, engaged in sex at least once a month for 10 months, and they lived together for 14 months after her admission. Although the family court judge found that there was insufficient evidence of condonation, our appellate court disagreed and found that there was enough evidence to show that the husband forgave the wife for her adultery.
Divorce Lawyers in Charleston, South Carolina
In the end, every case regarding condonation is different, and different judges have different opinions as to what is proof of condonation. While it is your personal choice to forgive your spouse, it is wise to know your legal rights if your marriage is in jeopardy. We encourage you to contact the lawyers at Futeral & Nelson to schedule a consultation and learn those rights.
