Proof of adultery as a ground for divorce must be “clear and positive and the infidelity must be established by a clear preponderance of the evidence.”  McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App.1987).  A “preponderance of the evidence” is evidence which convinces as to its truth. DuBose v. DuBose, 259 S.C. 418, 424, 192 S.E.2d 329, 331 (1972).

South Carolina courts have not specifically stated what sexual acts constitute adultery.  Panhorst v. Panhorst, 301 S.C. 100, 104, 390 S.E.2d 376, 378 (Ct.App.1990).  In Nemeth v. Nemeth, 325 S.C. 480, 486, 481 S.E.2d 181, 184 (Ct.App.1997), the Court of Appeals noted South Carolina has rejected the argument equating adultery with intercourse.  In Nemeth, the wife took a cruise and stayed in a cabin with a man other than her husband. Id. at 484, 481 S.E.2d at 183.   The wife denied she committed adultery and introduced evidence she had chronic pain that made intercourse difficult for her. Id. at 485, 481 S.E.2d at 184.   The Court of Appeals found adultery, stating sexual intercourse is not required to establish adultery;  sexual intimacy is enough. Id. at 486, 481 S.E.2d at 184.  Homosexual acts can constitute adultery. R.G.M. v. D.E.M., 306 S.C. 145, 410 S.E.2d 564, 567 (1991).

Because of the “clandestine nature” of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct.App.1987).   Accordingly, adultery may be proven by circumstantial evidence that establishes both a disposition to commit the offense and the opportunity to do so. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App.1987).  As one appellate court has noted, “Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence. Indeed, if it were not for circumstantial evidence, the practice of adultery would scarcely be known to exist.” Prevatte v. Prevatte, 297 S.C. 345, 377 S.E.2d 114, 118 (Ct.App. 1989) (citations omitted; emphasis added).

Generally, “proof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed.” Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App.1985).  Evidence placing a spouse and a third party together on several occasions, without more, does not warrant the conclusion the spouse committed adultery.  Fox v. Fox, 277 S.C. 400, 402, 288 S.E.2d 390, 391 (1982).

“[N]o eyewitness testimony is required to prove adultery.” Loftis v. Loftis, 284 S.C. 216, 325 S.E.2d 73, 74 (Ct.App. 1985).  The court may drawn an adverse inference on a spouse who asserts the Fifth Amendment privilege against self-incrimination when asked about alleged adultery. Griffith v. Griffith, 332 S.C. 630, 506 S.E.2d 526 (Ct.App. 1998).

“The same evidence which proves the opportunity can also prove the disposition.  For example, where a married man is observed going upstairs in a bawdyhouse, unless something to the contrary appears, no other evidence is required to warrant a finding of adultery.  The same may be said where a married woman spends the night in a motel, sleeping with a man to whom she is not married.” Husband v. Wife, 301 S.C. 531, 392 S.E.2d 811, 813 (Ct.App. 1990) (citation omitted).

In McElveen v. McElveen, 332 S.C. 583, 598, 506 S.E.2d 1, 8 (Ct.App.1998), the Court of Appeals declined to find the wife committed adultery because “there [was] virtually no evidence of a romantic or sexual relationship between the [wife and her paramour].”   The Court noted without evidence to support a romantic relationship, including love letters, romantic cards, hand-holding, hugging, kissing, or any other romantic demonstrations or actions between the wife and her paramour, adultery was not adequately established.

In Brown v. Brown, 379 S.C. 271, 280-81, 665 S.E.2d 174,179-80 (Ct.App. 2008), cert. denied, the Court of Appeals reversed a family court finding that Wife had not committed adultery, finding the following evidence mandated a finding of romantic inclination between Wife and her alleged paramour:

Furthermore, Wife’s and Craft’s own admissions establish they were inclined to commit adultery.  Craft testified the activities he and Wife engaged in were sexual in nature.  Wife and Craft admitted that when they would meet for lunch, they would often kiss in Wife’s car.  Craft also touched Wife’s breast and removed her bra.  Both Wife and Craft touched one another below the waist, outside of their clothing.  Wife also admitted Craft touched Wife ‘under her panties’ once or twice.  Additionally, Wife stated she was in love with Craft and that she discussed marriage with him.  Further, she admitted their relationship was sexual to a degree, and she desired to have sexual intercourse with Craft.

Their admissions to meeting for one-on-one lunches, calling each other frequently, kissing, and fondling indicate a “romantic relationship” existed, which also supports a finding of adultery.  Wife acknowledged she ceased talking to and seeing Craft for a period of time after Husband confronted her, showing Wife knew her actions were wrongful and inappropriate for a married woman.  While we defer to the family court on issues of credibility, sufficient direct and overwhelmingly circumstantial evidence is present in the record to clearly prove Wife committed adultery.  The evidence here of opportunity and inclination is too compelling to be brushed aside on the basis of Wife’s “strict moral upbringing” and her claims that the romantic rendezvous always stopped short of sexual intercourse.

In Gainey v. Gainey, 277 S.C. 519, 290 S.E.2d 242, 243 (1982), the Supreme Court reversed an award of alimony finding Wife was barred by the following evidence of adultery:

Appellant called five witnesses, each of whom testified that respondent spent the night with her paramour on numerous occasions.  Respondent, though denying adultery, admitted having spent the night with her paramour on a regular basis.

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