Condonation, along with connivance, collusion and recrimination, are affirmative defenses to a fault claim for divorce. These defenses were commonplace in England’s ecclesiastical courts[1]. They are infrequently asserted in Massachusetts divorce cases, however, and are not statutorily grounded. Many jurisdictions have abolished the condonation defense.[2]
What is condonation?
Condonation involves one spouse absolving or accepting the other spouse’s misconduct which would constitute grounds for divorce. In essence, it means that a party continues or resumes marital cohabitation, despite the other spouse’s misconduct. Thus, a party most often raises this defense in divorce actions alleging adultery. The argument says that dissolution of the marriage should be denied because the complaining spouse forgave or didn’t object to the other spouse’s wrongful behavior and their union continued. If, however, the unfaithful spouse cheated again after the forgiveness for the previous infidelity, the other spouse could bring an adultery claim. Condonation may also be offered as a defense in other fault-based divorce actions, such as those alleging fraud.
Some jurisdictions consider a couple’s resumption of marital relations after the defendant spouse’s wrongful behavior as conclusive proof of condonation. The Massachusetts Appeals Court, following the lead of the Maine Supreme Court, has held that “[s]exual intercourse is not…per se condonation.”[3]
Examples:
In the Zildjian case, the defendant wife appealed her alimony award and judgment of divorce for cruel and abusive treatment granted her husband, contending that the couple continued to live together after the first two instances of alleged cruel and abusive treatment. The court rejected her argument, however, finding that: “Condonation is a state of mind to be determined upon all the evidence, including rational inference.”[4] Condonation, the court noted, requires a factual determination of an intent to forgive, adding that a trial judge’s denial of the defense should only be overturned on appeal if clearly wrong.
In a more recent case, Sullivan v. Sullivan,[5] the wife was granted a divorce on the grounds of adultery. The husband vacated the marital home one month after his spouse discovered his affair, though the couple tried to reconcile over the course of several months, taking family trips together, going on several dates, and engaging in sexual relations when the wife visited the husband’s condominium. Nevertheless, the Appeals Court upheld the probate judge’s rejection of the husband’s defense. It ruled that the wife never condoned the husband’s affair, that the husband never returned to the marital home, and that the wife continued to demean the husband about his infidelity during the couple’s attempted reconciliation.
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[1] Robbins v Robbins, 140 Mass. 528, 529-530, 5 N.E. 837, 839 (1886).
[2] Chalmers v Chalmers, 65 N.J. 186, 190-191, 320 A.2d. 478 (1974).
[3] Zildjian v Zildjian, 8 Mass. App. Ct. 1, 391 N.E.2d 697, 700 (1979).
[4] Zildjian, 391 N.E.2d at 700, citing Hayden v Hayden, 326 Mass., 587, 591, 96 N.E.2d 136, 139 (1950).
[5] 10-P-1531 (Mass. App. Ct. 2011)