Georgia will not grant a fault-ground divorce that the spouses arranged between themselves in order to end the marriage.
What the Statute Says
Under OCGA 19-5-4(a)(1), no divorce shall be granted where “[t]he adultery, desertion, cruel treatment, or intoxication complained of was occasioned by the collusion of the parties, with the intention of causing a divorce.” Subsection (b) adds that “the respondent may plead in defense the conduct of the party bringing the action and the jury may, on examination of the whole case, refuse a divorce.”
So collusion is a bar to the divorce itself, and either spouse can raise it.
What Counts as Collusion
The problem is a manufactured ground. If the spouses agreed together to create or stage the adultery, the desertion, the cruel treatment, or the drinking so that one of them would have something to sue on, the ground is collusive and the court is not supposed to act on it. In Fender v. Crosby, 209 Ga. 896 (1953), the Georgia Supreme Court said the public policy of this State “forbids that a divorce shall be granted if there be evidence of collusive consent.”
Note what the statute does not say. By its own terms it reaches only cases where adultery, desertion, cruel treatment, or intoxication is “complained of.”
Raise It Before the Divorce Is Final
In Young v. Young, 188 Ga. 29 (1939), a husband agreed not to appear and contest his wife’s divorce, then sued afterward to set the decree aside because it had been obtained by collusion. The Georgia Supreme Court refused to undo the decree, observing that “[m]atters of collusion, consent, or condonation should be set up before final verdict.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!