Condonation is a defense to a divorce case that is still pending. It is not a way to undo a decree the court has already entered.
What the Statute Does Not Do
In Southworth v. Southworth, 265 Ga. 671 (1995), a husband conceded that he and his wife had cohabited before he amended his case to seek a divorce, and the trial court used that concession to set aside parts of the final decree after it was entered.
The Georgia Supreme Court held that was error. OCGA 19-5-4(a)(4) “establishes only that voluntary condonation and cohabitation constitute a defense to a pending divorce action, not a ground for setting aside a previously entered divorce decree.” Quoting an older decision, the Court added that “[m]atters of . . . condonation should be set up before final verdict.”
Not Knowing the Law Does Not Help
In Merritt v. Merritt, 210 Ga. 39 (1953), a wife filed her own divorce petition, the couple then resumed marital relations, and she went ahead and testified in support of her petition at trial. After the decree was entered she sued to set it aside, saying she had not known that resuming marital relations “amounted in law . . . to a condonation.”
The Georgia Supreme Court affirmed the dismissal of her suit. “She is presumed to know the law.” More to the point, “[s]he cannot induce a court to render a judgment in her favor, and then maintain an action to vacate that judgment because of facts of which she was or should have been fully aware at the time she procured the judgment.”
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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!