Georgia will not grant a divorce to a spouse who agreed in advance to the very misconduct they are now complaining about.
What the Statute Says
OCGA 19-5-4(a)(2) provides that no divorce shall be granted where “[t]he party complaining of the adultery, desertion, cruel treatment, or intoxication of the other party was consenting thereto.”
Subsection (b) is how it gets raised: “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.”
Consent Has to Come First
Read the statute closely. What is consented to is the conduct, not the divorce. The defense is aimed at the spouse who encouraged, arranged, or agreed to the other’s adultery, desertion, cruel treatment, or drinking, and then walked into court and asked for a divorce because of it. Forgiving conduct after the fact is a separate defense with its own rules.
Georgia Has Almost No Case Law on It
Older writers call this defense “connivance” and treat it as a distinct doctrine. The word appears nowhere in Georgia’s divorce statutes, and the appellate courts have said very little about the defense compared with the ones sitting beside it in the same Code section. That leaves the statutory text as essentially all a judge has to work from, so the exact wording matters more here than usual.
It Reaches Only Four Grounds
The bar operates only where “adultery, desertion, cruel treatment, or intoxication” is the ground being complained of. It says nothing about a divorce sought on the ground that the marriage is irretrievably broken.
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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!