O.C.G.A. § 19-5-4 (2019)

Annotations

Law reviews. For note discussing treatment of condo-

nation in various jurisdictions and advocating its abolition as a strict defense so as to promote reconciliation, see 20 Mercer L. Rev. 481 (1969). For note advocating abolition of the defense of recrimination, see 20 Mercer L. Rev. 484 (1969).

DOMESTIC RELATIONS JUDICIAL DECISIONS ANALYSIS

GENERAL CONSIDERATION LIKE CONDUCT CONDONATION JURY CHARGE General Consideration It is not necessary for wife to counterclaim for divorce to avail herself of this defense under the provisions of this statute. Minielly v. Minielly, 234 Ga. 434, 216 S.E.2d 271, 1975 Ga. LEXIS 1153 (1975). Reconciliation and cohabitatiion did not divest court of jurisdiction to grant divorce. - While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-53(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18, 2007 Ga. LEXIS 130 (2007). Like Conduct “Like conduct” construed. - When the ground of divorce of the husband is cruel treatment occurring prior to the separation, and the wife’s charge in her answer is adultery, this is not such “like conduct” as is contemplated by law. Schwartz v. Schwartz, 222 Ga. 460, 150 S.E.2d 809, 1966 Ga. LEXIS 518 (1966). Cruel treatment and desertion are not “like conduct” within the meaning of the law so as to prohibit the grant of a divorce. Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281, 1975 Ga. LEXIS 1169 (1975). Cruel treatment by the wife prior to separation vis-a-vis adultery of the husband after separation and an invalid Mexican divorce are not “like conduct”. Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281, 1975 Ga. LEXIS 1169 (1975). Cruel treatment of wife beating is “unlike” the cruel treatment of a wife’s abusive and insulting language to her husband. Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281, 1975 Ga. LEXIS 1169 (1975).

If both parties have been guilty of like misconduct, no divorce shall be granted. Cohen v. Cohen, 196 Ga. 562, 27 S.E.2d 28, 1943 Ga. LEXIS 384 (1943). Divorce denied to both parties who participate in quarreling. - When plaintiff’s testimony showed conclusively that any fussing and quarreling was participated in by both, neither party could be granted a divorce under this testimony. Davis v. Davis, 223 Ga. 657, 157 S.E.2d 444, 1967 Ga. LEXIS 651 (1967). Condonation “Condonation” is forgiveness, either expressed or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185, 1922 Ga. LEXIS 331 (1922); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215, 1937 Ga. LEXIS 590 (1937); Day v. Day, 210 Ga. 454, 81 S.E.2d 6, 1954 Ga. LEXIS 356 (1954); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925, 1970 Ga. LEXIS 545 (1970). Condonation includes conditional forgiveness of all antecedent acts of cruelty, and such acts as may have been condoned will not be revived except by fresh acts of cruelty. Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925, 1970 Ga. LEXIS 545 (1970). Sexual intercourse is not essential element of condonation, although it is conclusive evidence thereof. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185, 1922 Ga. LEXIS 331 (1922); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215, 1937 Ga. LEXIS 590 (1937); Dixon v. Dixon, 211 Ga. 869, 89 S.E.2d 473, 1955 Ga. LEXIS 497 (1955); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925, 1970 Ga. LEXIS 545 (1970). Mere request to resume marital relations not condonation. - Fact that the plaintiff had a friendly interview with

his wife, and requested her to return home and live with him, does not amount in law to a condonation. Johns v. Johns, 29 Ga. 718, 1860 Ga. LEXIS 283 (1860). What constitutes condonation of cruel treatment. - If, after an act of cruelty done by the husband to the wife, she lives with him for many years, and has by him numerous children, and would probably still live with him but for the interference of a child, the act is condoned by her. Buckholts v. Buckholts, 24 Ga. 238, 1858 Ga. LEXIS 188 (1858). If a husband is guilty of cruel treatment toward his wife, or of adultery, and with full knowledge thereof she condones the offense and cohabits with him, and he is not guilty of any further misconduct, she can not thereafter, at her mere will, desert him. Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 1910 Ga. LEXIS 355 (1910), overruled in part, Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272, 1976 Ga. LEXIS 1435 (1976). If there is no breach of condition after condonation, forgiveness stands complete and absolute. Condonation is not revocable at will. Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 1910 Ga. LEXIS 355 (1910), overruled in part, Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272, 1976 Ga. LEXIS 1435 (1976); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185, 1922 Ga. LEXIS 331 (1922). Condonation will not prevent divorce if based upon condition broken by the husband. Ozmore v. Ozmore, 41 Ga. 44, 41 Ga. 46, 1870 Ga. LEXIS 20 (1870). Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant. Day v. Day, 210 Ga. 454, 81 S.E.2d 6, 1954 Ga. LEXIS 356 (1954). Resumption of cruelty vitiates condonation. - When a husband filed a suit for divorce against his wife on the ground of cruel treatment, and subsequently the marital relations were resumed on the strength of the wife’s promise to desist from the acts of cruel treatment as alleged

in the petition, and when on resumption of marital relations the wife did not desist from such cruel treatment and another separation took place, the act of the husband in resuming the marital relation did not amount to condonation of the wife’s cruel treatment when she failed to fulfill the agreement by virtue of which the marital relations were resumed. Bruce v. Bruce, 195 Ga. 868, 25 S.E.2d 654, 1943 Ga. LEXIS 289 (1943). Revival of right when condition of condonation broken. - If after the condonation the conduct of the husband is such as to revive the condoned acts and give to the wife a right to assert them, she is not debarred from so doing; nor is she prevented from setting up misconduct on his part after the condonation for the consideration of the jury in determining whether a divorce should be granted. Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 1910 Ga. LEXIS 355 (1910), overruled in part, Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272, 1976 Ga. LEXIS 1435 (1976); Harn v. Harn, 155 Ga. 502, 117 S.E. 383, 1923 Ga. LEXIS 109 (1923). Question of condonation is peculiarly matter of defense in the trial of a divorce case on its merits. Lybrand v. Lybrand, 204 Ga. 312, 49 S.E.2d 515, 1948 Ga. LEXIS 404 (1948); Johnson v. Johnson, 210 Ga. 795, 82 S.E.2d 831, 1954 Ga. LEXIS 436 (1954). Voluntary condonation and cohabitation subsequent to the acts complained of are matters of affirmative defense in the trial of the case upon its merits. Adams v. Adams, 213 Ga. 875, 102 S.E.2d 566, 1958 Ga. LEXIS 311 (1958). Condonation may be more readily presumed against husband than wife, and condonation may be presumed from cohabitation which means dwelling together. Odom v. Odom, 39 Ga. 286 (1867); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185, 1922 Ga. LEXIS 331 (1922); Paris v. Paris, 197 Ga. 162, 28 S.E.2d 452, 1943 Ga. LEXIS 463 (1943). Condonation is not so readily presumed against the wife, as the husband. Knowledge of the guilt of the husband, and forgiveness by the wife, are not legally to be presumed, but must be clearly and distinctly proved, in order to bar her ac-

Condonation (Cont’d) tion. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215, 1937 Ga. LEXIS 590 (1937); Livingston v. Livingston, 211 Ga. 420, 86 S.E.2d 288, 1955 Ga. LEXIS 345 (1955). When presumption of condonation can be rebutted. - Although presumption of condonation arises if parties occupy same room and bed, such presumption can be rebutted by showing that the party seeking forgiveness has resorted to the same acts of cruel treatment which caused the initial separation. Thornton v. Thornton, 232 Ga. 666, 208 S.E.2d 557, 1974 Ga. LEXIS 1048 (1974). Presumption rebutted when party clearly denies cohabitation. - When the plaintiff wife testified that “we were not living as man and wife,” and that “there was no condonation on my part of the acts” of the husband, the general presumption of matrimonial cohabitation and condonation by the wife, arising from their occupancy of the same set of apartments, was sufficiently rebutted, so as to fully authorize a finding in her favor on the question of condonation. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215, 1937 Ga. LEXIS 590 (1937). When presumption not overcome. - Strong though rebuttable presumption that a marital act occurs when the parties occupy the same room is not overcome by testimony of the husband that they occupied separate beds and such an act did not occur, when he fails to give the facts and circumstances under which he found himself occupying the same room with his wife in a hotel, when the wife testifies that a marital act did occur. Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215, 1937 Ga. LEXIS 590 (1937). Defense to pending divorce action only. - O.C.G.A. § 19-5-4 establishes only that voluntary condonation and cohabitation constitute a defense to a pending divorce action, not a ground for setting aside a previously entered divorce decree; thus, it did not apply as a defense to a divorce decree and orders for custody and property division when the cohabitation occurred before, rather than after, filing of a divorce action. Southworth v. South-

worth, 265 Ga. 671, 461 S.E.2d 215, 1995 Ga. LEXIS 727 (1995). Moving party’s admission to having committed adultery. - Jury may refuse a divorce in cases when movant committed adultery, but in such circumstances the jury may, on examination of the whole case, grant a divorce. Williford v. Williford, 230 Ga. 543, 198 S.E.2d 181, 1973 Ga. LEXIS 977 (1973). Jury Charge Proper charge of mutual cruel treatment as “like conduct.” - After the judge charged the jury that, “if both were guilty of cruel treatment then you would refuse a divorce to both parties,” this was a sufficient charge of the law that a divorce will not be granted either party when both are guilty of “like conduct”. Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21, 1967 Ga. LEXIS 558 (1967). Error to fail to charge that jury should refuse divorce. - When each party charges and proves cruel treatment by accusations alleged by the other to be false, and denial of love for the other, it is error to fail to charge, without request, that, if the jury found both parties guilty of like conduct, the jury should refuse a divorce to either of them. Moon v. Moon, 216 Ga. 627, 118 S.E.2d 473, 1961 Ga. LEXIS 300 (1961); McCartney v. McCartney, 217 Ga. 200, 121 S.E.2d 785, 1961 Ga. LEXIS 412 (1961); Schwartz v. Schwartz, 222 Ga. 460, 150 S.E.2d 809, 1966 Ga. LEXIS 518 (1966); Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21, 1967 Ga. LEXIS 558 (1967); McClellan v. McClellan, 224 Ga. 355, 162 S.E.2d 425, 1968 Ga. LEXIS 772 (1968). When there is evidence that both parties have been guilty of like conduct, it is reversible error to fail to charge, without request, that, if both parties have been guilty of like conduct then no divorce shall be granted. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146, 1961 Ga. LEXIS 383 (1961). Error to overrule request for charge on definition of condonation. - When the pleadings and the evidence show repeated separations and reconciliations, after promises not to repeat the

misconduct, and then a breach of such promises, and the court charged that all such conduct could be considered unless condoned, the special ground complaining of the failure to charge a definition of condonation is meritorious, and since the question of whether or not there was condonation became a material issue in the case it was error to overrule the decision. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400, 1965 Ga. LEXIS 604 (1965). Charge to jury when equal guilt involved. - When the plaintiff’s grounds for divorce are cruel treatment, and the defendant’s cross-action (now counterclaim) seeks a divorce for desertion, it is reversible error to charge the jury that they may find a divorce in favor of both parties; to so find is a contradiction, contrary to the evidence and the law. Moon v. Moon, 216 Ga. 627, 118 S.E.2d 473, 1961 Ga. LEXIS 300 (1961). While no objection was made by counsel for the wife to the instruction that a divorce could be granted to both parties when the jury could find that the parties

were guilty of like conduct, this charge specifically authorized an invalid verdict, and it was a substantial error which is subject to review. Childs v. Childs, 223 Ga. 435, 156 S.E.2d 21, 1967 Ga. LEXIS 558 (1967). Condonation presents jury question. - Whether husband has condoned acts of alleged cruelty about which he complains is a question for determination by the jury. Paris v. Paris, 197 Ga. 162, 28 S.E.2d 452, 1943 Ga. LEXIS 463 (1943). Party estopped to challenge validity of property settlement in collusive divorce. - When the main relief sought by the plaintiff is the cancellation of certain conveyances and transfers and the recovery of real and personal property conveyed by him in pursuance of an agreement by which he obtained a divorce by collusion, he must come into a court of equity with clean hands and is estopped from attacking the validity of the decree thus self-induced. Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769, 1953 Ga. LEXIS 438 (1953).

RESEARCH REFERENCES Am. Jur. 2d. 24 Am. Jur. 2d, Divorce and Separation, §§ 17, 125, 128, 135 et seq., 243, 366. 24A Am. Jur. 2d, Divorce and Separation, § 1033. Am. Jur. Pleading and Practice Forms. 8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 81. C.J.S. 27A C.J.S., Divorce, § 100 et seq. ALR. Condonation of matrimonial offense without cohabitation, 6 A.L.R. 1157; 47 A.L.R. 576. Adultery by deserted spouse after desertion, as ground of divorce in favor of other spouse, 25 A.L.R. 1051. Doctrine of comparative rectitude in divorce cases, 63 A.L.R. 1132; 159 A.L.R. 734. Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646. Knowledge of offenses as condition of

condonation as defense to suit or counterclaim for divorce, 109 A.L.R. 683. Collusion as bar to divorce, 109 A.L.R. 832. Individual acts of cohabitation between husband and wife as breaking continuity of abandonment, desertion, or separation, or as condonation thereof, 155 A.L.R. 132. Divorce: necessity and sufficiency of corroboration of plaintiff’s testimony concerning ground for divorce, 15 A.L.R.2d 170. Revival of condoned adultery, 16 A.L.R.2d 585. What amounts to connivance by one spouse at other’s adultery, 17 A.L.R.2d 342. Recrimination as defense to divorce sought on ground of incompatibility, 21 A.L.R.2d 1267. Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107. Fault of spouse as affecting right to divorce under statute making separation

a substantive ground of divorce, 14 A.L.R.3d 502.