Condonation was a legal concept representing forgiveness of a marital wrong that would otherwise be grounds for divorce, traditionally acting as a defense to prevent a divorce based on an act the other spouse had forgiven. However, the defense of condonation has been formally abolished in Arkansas and is no longer a valid defense in divorce proceedings. This change is important for modern divorce cases in the state.
What is Condonation in Arkansas Divorce Law?
Under Arkansas Code § 9-12-325, the defense of condonation to any action for divorce is explicitly abolished.1Justia. Arkansas Code § 9-12-325 (2024) – Condonation Abolished This statute removed the ability of a spouse to argue that a divorce should be denied because their partner had previously forgiven misconduct like adultery or indignities. This change applies to all divorce actions.
Before this law, condonation served as a barrier to divorce. If a spouse knew of a marital offense, forgave it, and resumed the marital relationship, they were often legally barred from later using that offense to file for divorce. The abolition of this defense means an act of forgiveness, through words or actions, does not legally erase the fault ground for divorce. The law now focuses on the existence of the fault itself, not on whether it was subsequently forgiven.
How Condonation Was Historically Demonstrated
While the defense is abolished, understanding what it historically entailed provides context. Previously, demonstrating condonation required showing specific actions by the innocent spouse after they gained full knowledge of the marital offense. These actions were interpreted by the court as proof of forgiveness and an intent to continue the marriage.
The most common evidence was the voluntary resumption of sexual intercourse after the discovery of the fault. Continued cohabitation was also a strong indicator, as were express words of forgiveness when paired with actions that restored the offending spouse to their former marital status. For any of these actions to be legally effective, the innocent spouse must have had full knowledge of the misconduct. Forgiveness granted without an awareness of the full scope of the offense would not have been sufficient.
Key Factors for Proving Condonation in Court
Before its abolition, proving condonation required the spouse asserting the defense to establish several elements. The burden of proof was on the spouse claiming their actions had been condoned.
The first element was the innocent spouse’s full knowledge of the offense, meaning they were aware of all the facts of the misconduct. The second element was forgiveness, which could be express or implied through conduct. The final element was the restoration of the offending spouse to their former marital position. This required a full resumption of the husband-and-wife relationship, implying the misconduct would not happen again.
When Forgiven Misconduct Can Be Raised Again
Historically, the concept of revival was an exception to the condonation defense. Condonation was treated as conditional, based on the implied promise that the forgiven spouse would not repeat the offense or commit other marital misconduct. If the offending spouse broke this condition, the original offense could be legally revived.
This meant a subsequent offense canceled the prior forgiveness, allowing the original wrong to be used as a ground for divorce. Since Arkansas law has abolished the defense of condonation, the doctrine of revival is no longer applicable. Because forgiveness does not legally bar a spouse from filing for divorce, there is no need for a subsequent offense to revive the original claim.
Available Defenses in an Arkansas Divorce
While condonation is no longer a defense, other statutory defenses to a fault-based divorce remain. Arkansas Code § 9-12-308 provides that a divorce may be denied if the misconduct resulted from collusion between the parties, if the complaining spouse consented to the act, or if both parties are equally guilty of an offense complained of (a defense known as recrimination). These are affirmative defenses, and the party raising them bears the burden of proving them to the court.