South Carolina American Academy Of Matrimonial Lawyers
ADULTERY

Definition

The definition of adultery for the purpose of granting a divorce or barring alimony is illicit intercourse between two persons, at least one of whom is married to someone other than the sexual partner.

Explicit extra-marital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual character.

Proof

Adultery may be proven by circumstantial evidence showing inclination and opportunity to commit adultery.

Proof of adultery must be clear and positive. The infidelity must be established by a clear preponderance of the evidence, sufficiently definite to identify the time and place of the offense.

Defenses

Condonation is a defense to a claim of adultery. Condonation means forgiveness express or implied, by one spouse for a breach of marital duty by the other. Condonation is the forgiveness of the antecedent matrimonial offense on the condition that the marital offense shall not be repeated and that the offender treat the forgiving party with conjugal kindness. Condonation may be nullified by subsequent acts of adultery, which revive the formerly acts of adultery. Reconciliation (resumption of marital cohabitation) is another form of condonation and it is a defense to the charge of adultery.

Recrimination is a defense to a charge of adultery. Recrimination may arise from any conduct that has not been condoned which would be independently be sufficient as a ground for divorce itself, such as adultery, physical cruelty, habitual drunkenness, or desertion by the other spouse. In other words, if both spouses have committed acts sufficient to give rise to an action for divorce, neither spouse is entitled to a divorce on fault grounds.

Connivance is a defense to a charge of adultery. Connivance means that a spouse participated in or encouraged the other spouse to engage in an act of adultery.

Collusion, like connivance, is also a defense to a charge of adultery. That means the parties agreed that one spouse would commit an act of adultery in order to facilitate the Court granting a divorce.