Fault Divorce: “Adultery” as a Ground for Divorce

Fault Divorce: “Adultery” as a Ground for Divorce

Divorce and the consequences of ending a marriage can create considerable friction and tension between not only the spouses but also family members and friends. When considering a divorce, the spouses may choose between two different types of grounds for divorce: fault divorce or no-fault divorce.

No-Fault Divorce

No-fault divorce was only recently included in the South Carolina’s Code of Laws. Traditionally, couples were required to demonstrate that there was misconduct between or by one or both spouses. No-fault divorce has provided couples the opportunity to divorce without assigning blame and to permit changing affections to be reason enough to end an unhappy marriage. No-fault divorce, however, requires that the couple live separately and apart without any cohabitation or reconciliation for at least a year. This requirement provides that a couple who decides to give it “another shot” six months after their separation, but who break up days later, must start their separation over again for another one-year period.

Fault Divorce

Fault divorce has been the traditional choice for divorcing spouses. Divorce requires spouses to provide evidence that the marriage ended due to the fault of one or both of the spouses. Currently, fault divorce is still elected, especially for spouses who would like to divorce their spouse without waiting for the one-year separation time period. Spouses attempting to put forward a fault ground for divorce must provide clear and convincing evidence to show that the spouse is responsible for misconduct during the marriage and therefore, fault divorce

The following are considered grounds for a fault divorce in South Carolina:

  • Adultery;
  • Abandonment for one year or more;
  • Physical cruelty; and
  • Habitual drunkenness due to the use of any narcotic drug.


In our day and age, adultery is a very common ground for divorce. For one spouse to be able to utilize “adultery” as a ground for granting a divorce, he or she would have to prove that there was sexual intercourse between his/her spouse and a third party. In South Carolina, it is irrelevant whether the illicit activity occurred between the spouse and the member of the same or opposite gender.

Evidence: Direct or Circumstantial

Adultery can be proven by one spouse through direct or even circumstantial evidence proving that the other spouse had the tendency and opportunity to commit adultery. The evidence established by a preponderance of the evidence must demonstrate the time and place in which the illicit activity allegedly occurred.

Defenses to a Charge of Adultery

Using adultery as a ground for divorce has its limitations and the allegedly cheating spouse may counter the ground for divorce through a few different defenses.

  • Condonation is when one spouse, implicitly or expressly, forgives another spouse for any past or present misconduct. By forgiving the misconduct of one spouse, the other spouse promises to not repeat the marital violation in exchange. A spouse who has forgiven the bad acts of their spouse cannot later invoke them as a ground for divorce. He/she, however, may invoke it as a ground for divorce if there is subsequent misconduct.
  • Recrimination is another defense to a claim of adultery. If both spouses have partaken in the same or similar misconduct, then they may not bring the charge of misconduct against each other. For example, if both spouses have cheated, the charge of adultery cannot be used by one spouse against another.
  • Connivance is where one spouse condoned, encouraged, or aided the other spouse in engaging in the misconduct. A spouse who encourages his/her spouse to have sexual relations with a third person may not later use the incident as part of the charge of adultery.
  • Collusion is the final defense to adultery. This is where the parties come to an agreement that one spouse commits adultery so as to gain a divorce.

Experienced Family Law Attorneys in Mount Pleasant, Charleston Area

Fault and no-fault divorce can be extremely complex issues. It is important to consult with an experienced family law attorney like the attorneys at Klok Law Firm LLC before initiating a divorce from your spouse. Contact the Klok Law Firm LLC today for an initial and confidential consultation.

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