Condonation (a legal term meaning “conditional forgiveness”) is a powerful defense to a fault divorce in South Carolina. If proven, condonation revives an alimony claim despite a spouse’s adultery and notwithstanding South Carolina’s statutory bar [S.C. Code Ann. § 20-3-130(A)] to awarding alimony to an adulterous spouse. See, Grubbs v. Grubbs, 272 S.C. 138, 140, 249 S.E.2d 747, 749 (1978).
The definitions of condonation are confusing but basically condonation requires two elements: knowledge of the spouse’s improper behavior and continued cohabitation and marital intimacies after obtaining that knowledge.
As a defense in a divorce action, condonation means forgiveness, express or implied, by one spouse for a breach of marital duty by the other. More specifically, it is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. To establish condonation, there generally must be proof of reconciliation, which implies normal cohabitation of the husband and wife in the family home.
Nemeth v. Nemeth, 325 S.C. 480, 481 S.E.2d 181, 185 (Ct.App. 1997) (citations omitted)
One of the essential elements of condonation is the forgiving spouse’s knowledge, Either (sic) actual or presumed, of the offense alleged to have been forgiven or condoned… Condonation may be presumed from cohabitation; and lapse of time, or a continuance of marital cohabitation with knowledge of the offense, raises a presumption of condonation.
Grubbs, supra. In Grubbs the Supreme Court found condonation despite husband’s denials of knowledge regarding his wife’s past adultery based on ten years of continued cohabitation after her adultery occurred.
The concept of “presumed knowledge” of a spouse’s adultery based on continuous cohabitation is one of numerous ways the law of condonation is unclear in South Carolina. How long do spouses have to live together after one spouse’s adultery for this knowledge to be presumed? How long do the spouses need to resume cohabitation for the adultery to be condoned? How much knowledge of the fault is required for it to be condoned? Does the condoning spouse need to know about all the adulterous relationships for adultery to be condoned or just the most recent one? [In two unpublished opinions in the case of Powell v. Powell, the Court of Appeals indicated full knowledge was required but the Supreme Court then said full knowledge wasn’t the correct standard; because both opinions are unpublished they cannot be cited as the “law” of condonation and neither opinion cited any authority to support its view of the full knowledge issue] Because these issues are unsettled in South Carolina law, the general public’s beliefs surrounding condonation are often inaccurate.
Which leads to the interesting case of McCrosson v. Tanenbaum, 375 S.C. 225, 652 S.E.2d 73 (Ct.App.2007), a’ffd as modified 383 S.C. 150, 679 S.E.2d 172 (2009). In that case Ms. Tanenbaum apparently attempted to create condonation of her adultery by, in the midst of their divorce litigation, going over to her husband’s house, confessing to some, but not all, of her adultery, having sex, staying the weekend, and then leaving, never to return. Dr. McCrosson testified that after the parties had disrobed and he was about to engage in intercourse, his wife giggled and said, “I guess this takes care of Max [one of her paramours].” Ms. Tanenbaum denies this. The tone of the Court of Appeals opinion paints Dr. McCrosson as a spouse who remained in love with his wife throughout the separation, desiring of reconciliation almost to the end. In contrast, it paints Ms. Tanenbaum as a schemer, lying about her numerous affairs while trying to avoid the consequences of these affairs. If the Court of Appeals’ portrayal is true, Ms. Tanenbaum’s attempted “reconciliation” must have been emotionally wrenching for her husband.
Because Ms. Tanenbaum engaged in other affairs, the Court of Appeals never needed to reach the issue of whether this one sexual encounter constituted condonation. One hears rumors of attorneys counseling their adulterous clients to go back and have sex with their spouses once during the marital litigation to restore their entitlement to alimony. Such rumors are always secondhand; that is, no one I’ve talked to has ever actually heard an attorney admitting to providing such counsel, they simply hear stories that such counsel is being provided. If these rumors are true it says something hugely repellant about any attorneys giving this advice (and any clients who actually follow it). I can’t believe that such actions would constitute condonation–there’s no intent to resume cohabitation–but given the lack of clarity in South Carolina’s condonation law one cannot be sure. And, given some human beings’ capacity for greed and venality, until the law is absolutely clear, such shamelessly-brazen bump-’n-run sex is likely to remain part of our culture.