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).
Condonation is an affirmative defense and must be pled to be raised at trial. See Rule 8(c), SCRCP.
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 [In two unpublished opinions in the case of Powell v. Powell, the Court of Appeals indicated full knowledge was required but the Supreme Court then said full knowledge wasn’t the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. However, when proven, condonation can prevent the other party from obtaining a fault divorce and revive an alimony claim that would otherwise be barred by adultery.
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