Defenses to Divorce

One of the defenses to a divorce being sought on a fault-based ground is Condonation. Condonation is a legal term meaning “conditional forgiveness.” Condonation is a powerful defense to a fault divorce in South Carolina and can revive an alimony claim. South Carolina State law, S.C. Code Ann. § 20-3-130(A), creates a statutory bar to awarding alimony to an adulterous spouse. However, despite committing adultery, condonation can revive the adulterous’ spouses about to claim alimony, even in spite of law’s prohibition. Condonation requires two elements: knowledge of the spouse’s improper behavior and continued cohabitation and marital intimacies after obtaining that knowledge.
A critical factor in any defense of condonation is that of the forgiving spouse’s knowledge, actual or presumed, of the misconduct committed by the offending spouse that is to be forgiven. That is, in order to have a claim of condonation or forgiveness, the non-offending spouse had to no of the action that is to be forgiven. This would require some evidence from the party seeking a defense of condonation to show that the non-offending spouse knew or should have known of the misconduct.
As stated, Condonation is a conditional forgiveness. It is predicated on the idea that the non-offending spouse learns of the misconduct and forgives the offending spouse on the presumption that the misconduct will not occur again. So if one spouse was to commit adultery and the other spouse learns of and then conditionally forgives the offending spouse on the presumption that the offending spouse will not commit the misconduct again, the offending spouse can raise the defense of condonation if the non-offending spouse seeks a divorce on a fault based ground. However, should the offending spouse commit the same marital offense after the initial forgiveness, this would renew the non-offending spouse’s ability to file for a fault-based divorce.
Evidence of condonation can be presumed from resumed cohabitation between the offending and non-offending spouse. However, the length of time of cohabitation in South Carolina can be a matter of debate under our case law.;;