Defenses in Fault-based Divorce: Condonation and ReconciliationIntroduction
States traditionally have considered condonation and reconciliation to be common law affirmative defenses to fault-based divorce actions. Under that scenario, the defendant was required to plead and prove the defense. In states that allow fault-based divorce and that have comprehensive divorce statutes, the general movement has been to limit or eliminate common law divorce defenses such as condonation and reconciliation.
Condonation and reconciliation are similar concepts, and usually both must occur before the final divorce decree. Courts sometimes may consider acts occurring before the petition is filed if those acts carry high significance, depending on facts and circumstances of each individual case.
Condonation refers to a conditional forgiveness of the defendant spouse’s offense on which the divorce petition is based. It usually is accompanied by the spouses’ return to marital harmony. Condonation may be proved by the petitioner’s cohabiting with the respondent spouse after learning of the respondent’s wrongdoing.
Reconciliation generally is thought to be an unconditional forgiveness of the respondent’s offense(s) or a return to cohabitation after a separation, regardless of whether the separation was due to the respondent’s wrongful conduct. In short, reconciliation means the spouses resume living together as husband and wife despite the spouses’ former troubles. Mutual forgiveness is a good defense in fault-based divorce.
An intention to resume marriage relationship
The main element of both reconciliation and condonation is an intention to resume the marriage relationship. Without such an intention, a sexual relationship alone generally does not constitute reconciliation or condonation. Courts have held that a single instance of a physical relationship will not imply condonation or reconciliation because marriage extends beyond a mere sexual relationship. Conduct toward resuming mutual cohabitation after filing of the divorce petition may be seen as an attempt at reconciliation. Divorce courts usually will consider condonation or reconciliation only if that resumption is present.