Three of Georgia’s divorce defenses sound alike and are constantly confused, but the statute keeps them apart by timing.
They Are All in One Statute
OCGA 19-5-4(a) says no divorce shall be granted where: (1) the adultery, desertion, cruel treatment, or intoxication “was occasioned by the collusion of the parties, with the intention of causing a divorce,” (2) the complaining party “was consenting thereto,” or (4) “[t]here has been a voluntary condonation and cohabitation subsequent to the acts complained of, with notice thereof.” Paragraph (3), where both spouses are guilty of like conduct, is a separate defense with its own body of law.
Timing Separates Consent From Condonation
Paragraph (2) is the defense older writers call connivance. It looks backward to the moment before the misconduct – did the complaining spouse agree to it happening? Paragraph (4) looks forward from the misconduct – after learning of it, did that spouse take the other back anyway?
So the same facts can support one and not the other. A spouse who knew nothing until afterward cannot have consented, and a spouse who set the whole thing up is not merely forgiving it.
Collusion Takes Two
Collusion is the only one of the three that requires both spouses to act together, and the only one aimed at the ground itself rather than at the complaining spouse’s behavior. The statute says the misconduct must have been “occasioned by the collusion of the parties.”
Raise Them While the Case Is Alive
All three are trial defenses. As the Georgia Supreme Court put it in Young v. Young, 188 Ga. 29 (1939), “[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!