Adultery is defined as illicit intercourse between two persons, at least one of whom is married to someone other than the sexual partner. Panhorst v. Panhorst, 301 S.C. 100, 103, 390 S.E. 2d 376, 378 (Ct. App. 1990).
Explicit extra-marital sexual activity constitutes adultery regardless of whether it is of a homosexual or heterosexual character. R.G.M v. D.E.M, 306 S.C. 145, 149, 410 S.E. 2d 564, 567 (1991).
Proof of adultery as a ground for divorce must be “clear and positive and the infidelity must be established by a clear preponderance of the evidence.” McLaurin v. McLaurin, 294 S.C. 132, 133, 363 S.E.2d 110, 111 (Ct.App. 1987). A “preponderance of the evidence” is evidence which convinces as to its truth. DuBose v. DuBose, 259 S.C. 418, 424, 192 S.E.2d 329, 331 (1972). Because of the “clandestine nature” of adultery, obtaining evidence of the commission of the act by the testimony of eyewitnesses is rarely possible, so direct evidence is not necessary to establish the charge. Fulton v. Fulton, 293 S.C. 146, 147, 359 S.E.2d 88, 88 (Ct.App. 1987).
Adultery may be proven by circumstantial evidence that establishes both a disposition to commit the offense and the opportunity to do so. Hartley v. Hartley, 292 S.C. 245, 246-47, 355 S.E.2d 869, 871 (Ct.App. 1987). “Proof must be sufficiently definite to identify the time and place of the offense and the circumstances under which it was committed.” Loftis v. Loftis, 284 S.C. 216, 218, 325 S.E.2d 73, 74 (Ct.App. 1985).
Adultery must be established by a clear preponderance of the evidence, but that evidence need not be direct; it may be established by indirect or circumstantial evidence. Gainey v. Gainey, 277 S.C. 519, 290 S.E.2d 242 (1982).
Eyewitness evidence is not required. Brown v. Brown, 215 S.C. 502, 56 S.E.2d 330 (1949).
Evidence placing a spouse and a third party together on several occasions, without more, does not warrant the conclusion the spouse committed adultery. Fox v. Fox, 277 S.C. 400, 402, 288 S.E.2d 390, 391 (1982). In McElveen v. McElveen, 332 S.C. 583, 598, 506 S.E.2d 1, 8 (Ct.App. 1998), the court declined to find the wife committed adultery because “there [was] virtually no evidence of a romantic or sexual relationship between the [wife and her paramour].” Without evidence to support a romantic relationship, including love letters, romantic cards, hand-holding, hugging, kissing, or any other romantic demonstrations or actions between the wife and her paramour, adultery was not adequately established. Id.
The court reiterated in McLaurin, 294 S.C. at 133-34, 363 S.E.2d at 111, that circumstantial evidence indicating opportunity and inclination is sufficient to sustain a finding of adultery.
Condonation in the law of divorce means forgiveness, express or implied, by one spouse for a breach of marital duty by the other. More specifically, it is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offender shall thereafter treat the forgiving party with conjugal kindness. McLaughlin v. McLaughlin, 244 S.C. 265, 274, 136 S.E. 2d 537, 541 (1964). Condonation may be nullified by subsequent acts of adultery. Horton v. Horton, 282 S.C. 317, 319, 317 S.E. 2d 778, 780 (Ct. App. 1984).
Recrimination may arise from any conduct which has not been condoned and which would independently be sufficient as a ground for divorce itself. Jeffords v. Jeffords, 216 S.C. 451, 58 S.E. 2d 731, 733 (1950).
Condonation may also be used as a reply to the defense of recrimination. Pride v. Pride, 269 S.C. 70, 74, 236 S.E. 2d 404, 406 (1977) (granting husband divorce on ground of adultery when court found that wife had condoned husband’s acts of cruelty).