2020 Georgia Code
Title 19 - Domestic Relations
Chapter 5 - Divorce
§ 19-5-3. Grounds for Total Divorce

Universal Citation: GA Code § 19-5-3 (2020)

The following grounds shall be sufficient to authorize the granting of a total divorce:

  1. Intermarriage by persons within the prohibited degrees of consanguinity or affinity;
  2. Mental incapacity at the time of the marriage;
  3. Impotency at the time of the marriage;
  4. Force, menace, duress, or fraud in obtaining the marriage;
  5. Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;
  6. Adultery in either of the parties after marriage;
  7. Willful and continued desertion by either of the parties for the term of one year;
  8. The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;
  9. Habitual intoxication;
  10. Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;
  11. Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party's mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;
  12. Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16; or
  13. The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.

(Laws 1850, Cobb's 1851 Digest, p. 226; Code 1863, § 1670; Code 1868, § 1711; Code 1873, § 1712; Code 1882, § 1712; Civil Code 1895, § 2426; Civil Code 1910, § 2945; Code 1933, § 30-102; Ga. L. 1946, p. 90, § 2; Ga. L. 1951, p. 744, § 1; Ga. L. 1962, p. 600, § 1; Ga. L. 1963, p. 288, § 1; Ga. L. 1971, p. 361, § 1; Ga. L. 1972, p. 633, § 1; Ga. L. 1973, p. 557, § 1; Ga. L. 1977, p. 1253, § 3; Ga. L. 2016, p. 864, § 19/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, added "or" at the end of paragraph (12).

Cross references.

- Criminal penalty for adultery, § 16-6-19.

Rights and privileges of persons hospitalized for mental illness generally, § 37-3-140 et seq.

Law reviews.

- For article discussing the irretrievably broken marriage as a ground for divorce, see 10 Ga. St. B.J. 9 (1973). For article surveying Georgia cases dealing with domestic relations from June 1977 through May 1978, see 30 Mercer L. Rev. 59 (1978). For note, "The Impact of the Revolution in Georgia's Divorce Law on Antenuptial Agreements," see 11 Ga. L. Rev. 406 (1977).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Adultery
  • Cruel Treatment
  • Desertion
  • Marriage Irretrievably Broken
  • Other Grounds for Divorce
General Consideration

Law was capable of definition and application. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Specified grounds required for dissolution of marriage.

- Marriage relationship cannot be dissolved in this state except upon grounds specified in this statute. Christopher v. Christopher, 198 Ga. 361, 31 S.E.2d 818 (1944).

When jury authorized to find for divorce.

- Jury is authorized to find for divorce when evidence establishes grounds upon which the action is brought. Brackett v. Brackett, 217 Ga. 84, 121 S.E.2d 146 (1961).

When action for divorce is not available remedy.

- When marriage status never existed and complaint is not grounds for divorce, action for divorce is not available remedy to the petitioner. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946).

Previous undissolved marriage of one party is not grounds for divorce. Gearllach v. Odom, 200 Ga. 350, 37 S.E.2d 184 (1946); Pritchett v. Ellis, 201 Ga. 809, 41 S.E.2d 402 (1947); Lovett v. Zeigler, 224 Ga. 144, 160 S.E.2d 360 (1968).

Cited in Smith v. Smith, 167 Ga. 98, 145 S.E. 63 (1928); Baker v. Baker, 168 Ga. 478, 148 S.E. 151 (1929); Kendrick v. Kendrick, 173 Ga. 434, 160 S.E. 502 (1931); Twilley v. Twilley, 195 Ga. 291, 24 S.E.2d 41 (1943); Mackey v. Mackey, 198 Ga. 707, 32 S.E.2d 764 (1945); Ragans v. Ragans, 200 Ga. 890, 39 S.E.2d 162 (1946); Sorrow v. Sorrow, 203 Ga. 146, 45 S.E.2d 413 (1947); Brant v. Brant, 209 Ga. 151, 71 S.E.2d 209 (1952); Veazy v. Blair, 86 Ga. App. 721, 72 S.E.2d 481 (1952); Hinkle v. Hinkle, 209 Ga. 554, 74 S.E.2d 657 (1953); Anglin v. Anglin, 209 Ga. 823, 76 S.E.2d 498 (1953); Stimpson v. Stimpson, 213 Ga. 235, 98 S.E.2d 559 (1957); Morrison v. Morrison, 215 Ga. 143, 109 S.E.2d 519 (1959); Shivers v. Shivers, 215 Ga. 536, 111 S.E.2d 376 (1959); Phillips v. Phillips, 215 Ga. 606, 112 S.E.2d 594 (1960); Walston v. Walston, 216 Ga. 577, 118 S.E.2d 369 (1961); Mills v. Mills, 218 Ga. 686, 130 S.E.2d 221 (1963); Tolbert v. Tolbert, 221 Ga. 159, 143 S.E.2d 743 (1965); Davis v. Davis, 223 Ga. 657, 157 S.E.2d 444 (1967); Poulos v. Poulos, 226 Ga. 375, 174 S.E.2d 925 (1970); Harkness v. Harkness, 228 Ga. 184, 184 S.E.2d 566 (1971); Funderburk v. Funderburk, 229 Ga. 457, 192 S.E.2d 262 (1972); Southeastern Fid. Ins. Co. v. Fluellen, 128 Ga. App. 877, 198 S.E.2d 407 (1973); Barden v. Barden, 230 Ga. 663, 198 S.E.2d 869 (1973); Roberts v. Roberts, 231 Ga. 196, 200 S.E.2d 731 (1973); Ivey v. Ivey, 233 Ga. 45, 209 S.E.2d 590 (1974); Blois v. Blois, 234 Ga. 475, 216 S.E.2d 281 (1975); Anders v. Anders, 238 Ga. 79, 231 S.E.2d 64 (1976); Leachmon v. Leachmon, 239 Ga. 780, 238 S.E.2d 863 (1977); Ford v. Ford, 243 Ga. 763, 256 S.E.2d 446 (1979); Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49 (1982).

Adultery

Adultery during marriage is ground for divorce by the other spouse, of whatever gender. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Act of illicit sexual intercourse committed prior to marriage is not ground of divorce in this state. Stanley v. Stanley, 115 Ga. 990, 42 S.E. 374 (1902).

Adultery may involve homosexual relations.

- Person commits adultery when he or she has sexual intercourse with a "person" other than his or her spouse. Therefore, both extramarital homosexual, as well as heterosexual, relations constitute adultery. Owens v. Owens, 247 Ga. 139, 274 S.E.2d 484 (1981).

Petitioner not precluded from alleging adultery when discovered after separation.

- When the husband sought divorce on ground of adultery, among other grounds, the fact that the petitioner did not know of the adultery until after the separation did not prevent the petitioner from seeking a divorce based on adultery after learning of the adultery. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Evidence of adultery.

- To be a viable ground for divorce, evidence of adultery must continue to be admissible. Hargrett v. Hargrett, 242 Ga. 725, 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).

Adultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. But if such evidence is fairly susceptible of two interpretations, one consistent with innocence and the other with guilt, it is not sufficient to prove adultery. Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962).

Requirements for inferring adultery from circumstantial evidence.

- There must be both opportunity and adulterous disposition for adultery to be inferred from circumstantial evidence. Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229 (1962).

Cruel Treatment

"Cruel treatment," was willful infliction of pain, bodily or mental, upon the complaining party such as reasonably justifies an apprehension of danger to life, limb, or health. Odom v. Odom, 36 Ga. 286 (1867), overruled on other grounds, Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1923); Ring v. Ring, 118 Ga. 183, 44 S.E. 861 (1903); Ford v. Ford, 146 Ga. 164, 91 S.E. 42 (1916); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Adams v. Adams, 195 Ga. 479, 24 S.E.2d 683 (1943); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955); Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955); Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394 (1968).

Cruel treatment, or cruelty in the broad and unrestricted sense in which it is used in the statute, is any act intended to torment, vex, or afflict, or which actually afflicts or torments without necessity; or any act of inhumanity, wrong, oppression, or injustice. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929); Morris v. Morris, 202 Ga. 431, 43 S.E.2d 639 (1947); Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Acts of cruelty must be such as to render cohabitation unsafe, or are likely to be attended with injury to the person or to the health of the wife. It must be the intention of the offending party to injure - to wound. It must be a willful act the purpose of which is to hurt. Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Cruel treatment justifying separation defined.

- Cruel treatment which would justify a wife in leaving her husband and living in a state of separation from him, while he is willing to have her come back to his home and live with him, should have the same definition as the cruel treatment which would afford grounds for divorce. Mell v. Mell, 190 Ga. 508, 9 S.E.2d 756 (1940); Mullikin v. Mullikin, 200 Ga. 638, 38 S.E.2d 281 (1946); Brown v. Brown, 217 Ga. 671, 124 S.E.2d 399 (1962).

Willfulness of cruel treatment is essential element which will authorize the grant of a divorce. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Intention to wound is necessary element of cruel treatment for which divorce will be granted. Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955); Brown v. Brown, 228 Ga. 330, 185 S.E.2d 412 (1971).

Without element of willfullness, there can be no cruel treatment which will authorize the grant of a divorce upon that ground. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Vaughan v. Vaughan, 223 Ga. 298, 154 S.E.2d 592 (1967).

If the alleged acts of cruel treatment by the defendant toward the petitioner resulted from the defendant's emotionally unstable personality and not from a willful desire to wound the plaintiff, then the defendant was guilty of no cruel treatment which could authorize the grant of a divorce to the plaintiff on this ground. Connor v. Connor, 212 Ga. 92, 90 S.E.2d 581 (1955).

While husband's allegations as to matters transpiring before the reconciliation of the parties asserted conduct unbecoming a wife, they did not amount to allegations of cruel treatment since there was shown no willful infliction of pain such as would justify an apprehension of danger to life or health. Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958).

Insane person cannot commit willful acts which amount to cruel treatment within the meaning of paragraph (10) of this statute. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

Divorce on grounds of cruel treatment presupposes bona fide separation. Sutton v. Sutton, 224 Ga. 140, 160 S.E.2d 385 (1968).

Separated spouses can commit cruel acts.

- Fact that spouses live separated does not make it impossible for either to commit cruel acts which may be the basis for a divorce. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940); Wiley v. Wiley, 231 Ga. 798, 204 S.E.2d 170 (1974).

Separation can occur when one spouse moves into another room with intent and purpose of suspending conjugal rights. Blasingame v. Blasingame, 249 Ga. 791, 294 S.E.2d 519 (1982).

Actual physical violence is not essential ingredient of cruel treatment as used in paragraph (10) of this statute, or as construed by the Supreme Court. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940).

Mental anguish may amount to cruelty.

- Mental anguish and wounded feelings, constantly aggravated by repeated insults and neglect, are as bad as actual bruises of the person, and that which produces the one is not more cruel than that which causes the other. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929); Duncan v. Duncan, 183 Ga. 570, 189 S.E. 18 (1936).

Commission of acts which outrage the feelings of modesty and decency, such as threatening to commit, or attempting to commit, adultery, or cursing, abusing, or using insulting and opprobrious language, when done between a husband and wife, whether by the husband to the wife, or by the wife to the husband, and in the knowledge or coming to the knowledge of both; these also, if persisted in and unatoned for, constitute cruel treatment. Ross v. Ross, 169 Ga. 524, 150 S.E. 822 (1929).

Words must be intended to wound.

- In absence of intention to wound, words do not constitute cruel treatment as contemplated by the law as a ground for divorce. Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Acts intended to cause anguish.

- Acts or conduct of the defendant which would not amount to cruel treatment when considered alone might be found by the jury to enter into an alleged calculated intent by the defendant of causing the petitioner great mental pain and anguish. Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Requirement of reasonable apprehension of injury.

- There is no requirement that plaintiff's health be actually injured, but only that there be reasonable apprehension of injury. Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172 (1965).

Minor acts of temper not cruelty.

- Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to the cruelty against which the law can relieve. Ring v. Ring, 118 Ga. 183, 44 S.E. 861 (1903); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954); Ewing v. Ewing, 211 Ga. 803, 89 S.E.2d 180 (1955).

Slight disagreements, and words inspired by transitory temper, were never intended by the statute as cause for setting aside a marriage contract. Brown v. Brown, 129 Ga. 246, 58 S.E. 825 (1907).

Single act of personal violence.

- As a general rule, single act of personal violence is not considered cruel treatment, but two or more such acts alone may furnish ground for divorce. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922); Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).

One act of cruelty, not of a violent or serious character, standing alone, is not a sufficient ground for a divorce. Brown v. Brown, 217 Ga. 671, 124 S.E.2d 399 (1962); Hearn v. Hearn, 220 Ga. 577, 140 S.E.2d 861 (1965).

When single act of cruelty may justify divorce.

- Single act of cruelty may be so severe and atrocious as to justify divorce; and a single act of cruel and inhuman treatment, accompanied by circumstances indicating a probability of a repetition of similar conduct, will warrant a divorce. Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922).

"Nagging" may be cruel treatment. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Allegations of "fussing and nagging" are sufficient to state a cause of action for divorce based on cruel treatment. Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (1966).

Continuous course of ill conduct, such as nagging, injuriously affecting or endangering health of other spouse, might constitute cruel treatment as a ground of divorce, even though one incident in the course of conduct would not; and condoned acts in such a series of misconduct might be revived by the renewal and persistence of the conduct. Womble v. Womble, 214 Ga. 438, 105 S.E.2d 324 (1958).

Acts by wife, including continuous nagging and fussing, which were alleged in the husband's petition for divorce are sufficient to state a cause of action for divorce on the ground of cruel treatment. Cramer v. Cramer, 217 Ga. 414, 122 S.E.2d 729 (1961).

Allegations of continuous fussing and nagging were sufficient to charge cruel treatment. Hirsch v. Hirsch, 217 Ga. 590, 123 S.E.2d 915 (1962).

Constant nagging and false accusations can amount to cruel treatment. Hardy v. Hardy, 221 Ga. 176, 144 S.E.2d 172 (1965).

Affectionate attentions to other persons.

- Testimony of an unmarried woman as to attentions shown to her by the defendant, including a proposal of marriage, along with letters written by the defendant to the witness, containing terms of endearment and the like, is admissible to corroborate the testimony of the plaintiff as to cruel treatment. West v. West, 199 Ga. 378, 34 S.E.2d 545 (1945).

Circulating slanderous reports of infidelity.

- Circulation of reports of infidelity is such cruelty as would not only justify a separation, but would sustain an action for total divorce. Myrick v. Myrick, 67 Ga. 771 (1881); Glass v. Wynn, 76 Ga. 319 (1886)(This holding was said to be obiter in Ring v. Ring, 118 Ga. 183, 44 S.E. 861, 62 L.R.A. 878 (1903)).

Charge of adultery.

- Charging a wife who was undergoing "the change of life," in her presence, with incestuous adultery with her brother, and these charges producing such mental pain as to cause her to become ill and to keep her in bed, at times for as long as two weeks, is sufficient to authorize a verdict for total divorce on the ground of cruel treatment. Miller v. Miller, 139 Ga. 282, 77 S.E. 21 (1913).

Charge of unchastity.

- It is not cruel treatment to charge a wife with unchastity if she has been guilty thereof. Fuller v. Fuller, 108 Ga. 256, 33 S.E. 865 (1899).

Kicking one's wife, wounding and bruising her eye, head, and face, is cruel treatment sufficient to justify a divorce. Ozmore v. Ozmore, 41 Ga. 46 (1870).

Refusal to cohabit not cruel treatment.

- Mere proof that a wife declined to cohabit with her husband will not authorize the grant of a divorce to him on the ground of cruel treatment. Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910).

Spouse's dishonesty to third person not cruelty.

- Dishonesty on the part of a husband in his dealings with a third party, not connected with his domestic relations or his treatment of his wife or the grounds of cruelty alleged in her petition, should not be brought to the attention of the jury in the charge, as possibly illustrating the conduct of the parties in respect to each other, on the issue of whether or not the plaintiff cruelly treated his wife. Anglin v. Anglin, 145 Ga. 822, 90 S.E. 73 (1916).

Taking legal action against spouse.

- That a wife brings action against her husband and recovers judgment against him for a debt due to her, and that after separation she sues him for temporary alimony and obtains a judgment in such action, does not constitute cruel treatment or furnish to the husband any basis for a suit for divorce. Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910).

Alleging element of willfulness.

- Allegations that the acts done or words spoken were done intentionally and for the purpose of injuring or wounding the petitioner were sufficient to allege the element of willfulness in the infliction of mental pain. Swindle v. Swindle, 221 Ga. 760, 147 S.E.2d 307 (1966).

Alleged cruelty of a continuous nature.

- When cruelty alleged is of a continuous nature, it is not necessary to set forth dates of the cruelties complained of. Cramer v. Cramer, 217 Ga. 414, 122 S.E.2d 729 (1961).

Amending charges of cruelty.

- Charges of cruelty in petition, as basis for divorce, may be amended by other charges of cruelty, and the plaintiff is not required to set forth with exactitude the dates of cruelty continuous in character. Duncan v. Duncan, 183 Ga. 570, 189 S.E. 18 (1936).

Element of willfulness in jury charge.

- In charging upon cruel treatment, court should not omit reference to element of willfulness in the offense against the complaining party, nor fail to instruct the jury that it must be such as reasonably justifies the apprehension of the injuries referred to. Skellie v. Skellie, 152 Ga. 707, 111 S.E. 22 (1922).

Failure of judge to embrace element of willfulness in instruction requires grant of new trial, unless as a matter of law the court holds that the cruel treatment was willful. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).

Charge which embodied substantially definition of cruel treatment was not erroneous merely because not stated in the exact language of the Code. Bell v. Bell, 213 Ga. 176, 97 S.E.2d 571 (1957).

Cruelty presents question of law.

- What constitutes cruel treatment within the meaning of the law is a question of law for the court. Gholston v. Gholston, 31 Ga. 625 (1860); Brown v. Brown, 129 Ga. 246, 58 S.E. 825 (1907).

Adverse verdict on one claim of cruelty not bar to second action.

- Party who has once filed an action for divorce on the ground of cruel treatment, which resulted in a verdict and decree adverse to that party is not barred from thereafter filing a second petition on the same ground, but based on different acts, all of which were committed since the date of the former trial. Slaughter v. Slaughter, 190 Ga. 229, 9 S.E.2d 70 (1940).

Desertion

Willful and continued desertion.

- Willful and continued desertion by either party for a term of three years (now one) will authorize total divorce. Wilkinson v. Wilkinson, 159 Ga. 332, 125 S.E. 856 (1924).

Petitioner's consent to desertion is not grounds for divorce. Word v. Word, 29 Ga. 281 (1859); Phinizy v. Phinizy, 154 Ga. 199, 114 S.E. 185 (1922).

Affirmative natural elements of desertion are two: the cohabitation ended, and the offending party's intent to desert. The statute creates a third affirmative element, the lapse of a definite period of time. Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

There are three affirmative elements of desertion under law: the cohabitation ended, the offending party's intent to desert, and the lapse of a definite period of time. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941).

Desertion must be without legal justification, and without a breach of the continuity which the statute renders essential. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Desertion must be "willful."

- Desertion must not only have been continued for three years (now one) but must be "willful." Siniard v. Siniard, 145 Ga. 541, 89 S.E. 517 (1916).

Law required voluntary separation of one married party from other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75 (1941); Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Separation by mutual consent does not constitute desertion. Born v. Born, 213 Ga. 830, 102 S.E.2d 170 (1958).

Voluntary separation is not desertion.

- While desertion as a ground for divorce must have been "willful," a separation based merely on a voluntary agreement by both parties that they shall live apart, will not constitute the necessary element of willfulness as to a desertion by either party. Allen v. Allen, 194 Ga. 591, 22 S.E.2d 136 (1942).

Denial of conjugal rights may amount to desertion.

- Within the meaning of the law, it was desertion by the wife, though she continues to reside in the matrimonial domicile, for her willfully, persistently, and without justification to deny her husband all his conjugal rights with the intention of casting him off as a husband completely and forever. The continuance of this state of affairs for three years (now one) affords cause of divorce on the grounds of desertion. Whitfield v. Whitfield, 89 Ga. 471, 15 S.E. 543 (1892); Pinnebad v. Pinnebad, 134 Ga. 496, 68 S.E. 73 (1910); Duncan v. Duncan, 184 Ga. 602, 192 S.E. 215 (1937).

Continued refusal after request for renewal of relations.

- If the husband requests a resumption of the marital relation and a reconciliation in good faith, the refusal of the wife to resume cohabitation without justification or reasonable excuse manifests an intent to stay away and may constitute desertion on her part. Born v. Born, 213 Ga. 830, 102 S.E.2d 170 (1958).

One-year requirement for willful desertion.

- Evidence must show willful desertion for period of one year prior to filing of divorce action. Monroe v. Monroe, 218 Ga. 353, 127 S.E.2d 899 (1962).

Evidence going to show that the desertion was not "willful", or that the petitioner was consenting, is admissible for the respondent. Word v. Word, 29 Ga. 281 (1859).

Parties as witnesses on desertion issue.

- In an action for divorce by the husband against his wife alleging willful and continued desertion of the wife for a term of three years (now one), the husband is a competent witness; but he could not testify as to any facts derived by him from the confidential relation of husband and wife. Castello v. Castello, 41 Ga. 613 (1871).

Jury questions.

- Under paragraph (7) of former Code 1933, § 30-102 (see now O.C.G.A. § 19-5-3), even if the jury believed that appellant-husband had offered to resume marital relations and that appellee had refused to do so, a verdict for appellee would be proper because questions of good faith on the part of the husband in making the offer and whether the refusal of the wife to resume marital relations was justified or not under the circumstances and the period of time when the desertion began, are all for the determination of the jury. Reagan v. Reagan, 221 Ga. 656, 146 S.E.2d 906 (1966).

Marriage Irretrievably Broken

Constitutionality of divorce ground that marriage is irretrievably broken.

- Grant of divorce on ground that marriage is irretrievably broken does not violate due process, equal protection, privileges and immunities, right to the courts, and right to trial by jury clauses of the state and federal constitutions. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Legislative intent in adding "no fault" ground of divorce was to manifest public policy of avoiding recriminations between married persons seeking a divorce. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

Paragraph (13) amends public policy.

- Public policy of the state to hinder facility in the procurement of divorces has been amended to the extent that paragraph (13) of this statute facilitated the procurement of divorces. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

When paragraph (13) of this section conflicts with other sections.

- To the extent that paragraph (13) of this statute was in irreconcilable conflict with other statutes, it must be held to amend those statutes by implication. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Irretrievably broken marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation. McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

No allocation of fault in irretrievably broken marriage.

- Under irretrievably broken ground, divorce is granted to both parties without allocation of fault. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

Trial court is required to grant a divorce to both parties without fixing or placing fault on either party when a divorce is granted on the pleadings on irretrievably broken grounds. Herring v. Herring, 237 Ga. 771, 229 S.E.2d 756 (1976).

Divorce granted on irretrievably broken grounds should be granted to the parties equally. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

When traditional fault grounds alleged in addition to irretrievable break.

- Even when traditional fault allegations are put forth by affidavit, or as evidence at a hearing, on a motion for summary judgment on the irretrievably broken ground, the primary finding is merely that the marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation no matter what the reasons are that have caused that result. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

No proof of fault required to show marriage is "irretrievably broken."

- When parties do not specifically complain of the other's conduct, but merely state that their marital differences are insoluble and request a change of status, the only question is whether there are prospects for reconciliation. Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976).

No evidence requirement as to good faith effort.

- There is no requirement that evidence show that parties made good faith effort to make successful marriage, nor that the marriage became irretrievably broken through no fault of either party. Whitmire v. Whitmire, 236 Ga. 153, 223 S.E.2d 135 (1976).

Reconciliation and cohabitation of parties terminates action for divorce. This is a "no-fault" ground, and there can be no reconciliation on condition applicable to it, the breach of which condition would revive the action for divorce. Lindsay v. Lindsay, 241 Ga. 166, 244 S.E.2d 8 (1978).

In a case in which a complaint for divorce is brought upon the ground that the marriage was irretrievably broken, subsequent reconciliation and cohabitation of the parties terminates the action for divorce. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Allegation of an irretrievably broken marriage is demonstrably false if the parties have resumed cohabitation or have reconciled for any period. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Reconciliation and cohabitation did not divest court of jurisdiction.

- While cohabitation and reconciliation could be asserted as defenses to a pending divorce action, they did not divest a court of jurisdiction to enter a divorce decree; further, the court was authorized under O.C.G.A. § 19-5-3(13) to grant a divorce based on the evidence that the marriage was irretrievably broken. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).

Whether possibility for reconciliation exists is subjective. When the issue is contested by one of the parties to the divorce action, all relevant evidence is admissible to aid in this determination. Whitmire v. Whitmire, 236 Ga. 153, 223 S.E.2d 135 (1976).

Party's failure to embark upon reconciliation in good faith.

- If one party does not embark upon reconciliation in good faith, it cannot amount to evidence of hope for the marriage. Joiner v. Joiner, 246 Ga. 77, 268 S.E.2d 661 (1980).

Mere fact that party maintains hope for reconciliation will not support finding that there are prospects for such. McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

No-fault divorce may be granted by summary judgment when the movant seeks a divorce on the irretrievably broken grounds and pierces the opposing party's pleadings, which deny that the marriage is irretrievably broken. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Summary judgment should be denied in a divorce proceeding when one of the parties moves for summary judgment on the issue of no-fault divorce and the other party opposes the motion by filing an affidavit expressing that party's opinion that the marriage is not irretrievably broken and there are genuine prospects for reconciliation. Whittington v. Whittington, 247 Ga. 79, 274 S.E.2d 333 (1981).

Party estopped to complain of divorce judgment granted under paragraph (13).

- When the court granted a divorce to the wife on the ground of the marriage being irretrievably broken she cannot later complain because one cannot complain of a judgment, order, or ruling that one's own procedure or conduct procured or aided in causing. Friedman v. Friedman, 233 Ga. 254, 210 S.E.2d 754 (1974).

Other Grounds for Divorce

Insanity at time of marriage is grounds for divorce. Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445 (1949).

Natural impotence existing at time of marriage will void the marriage. Head v. Head, 2 Ga. 191 (1847).

No requirement as to petitioner's knowledge of impotency.

- In naming impotency as a ground for divorce, merely specified "Impotency at the time of the marriage," without any qualification as to knowledge of the petitioner thereof. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

Condonation of impotency is specific affirmative defense which must be alleged and proved by the party insisting upon it. Lovelace v. Lovelace, 179 Ga. 822, 177 S.E. 685 (1934).

"Menace."

- Any overt act of threatening character, short of actual assault, was "menace." Bryant v. Bryant, 192 Ga. 114, 14 S.E.2d 725 (1941).

When false representation of paternity not grounds for divorce.

- When woman prior to her marriage falsely and fraudulently represented to her prospective husband that he was the father of a child with which she was then pregnant, such representation would not be ground for the grant of a divorce based upon fraud, when it was shown that he married her to avoid a prosecution for seduction. Peacon v. Peacon, 197 Ga. 748, 30 S.E.2d 640 (1944).

There were three essential ingredients in grounds for divorce based on conviction for a crime of moral turpitude: the commission of the offense involving moral turpitude, the conviction for the offense, and a sentence for a term of two years or longer in the penitentiary. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Right to divorce for criminal conviction is not affected by executive pardon granted after sentence has been imposed. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Applicability of condonation.

- Condonation has no application between date of conviction and sentence and actual incarceration. Henderson v. Henderson, 235 Ga. 236, 219 S.E.2d 160 (1975).

Voluntary manslaughter conviction.

- Conviction of a married person of voluntary manslaughter followed by a sentence of imprisonment in the penitentiary for a term of two years or longer gives to the other party to the marriage a right to a divorce. Holloway v. Holloway, 126 Ga. 459, 55 S.E. 191 (1906).

Not necessary to show continual intoxication.

- In order to prove "habitual intoxication" on the part of the respondent, it is not essential to show that one was constantly and continuously drunk. Fuller v. Fuller, 108 Ga. 256, 33 S.E. 865 (1899).

Proof of drunkenness on one occasion insufficient.

- Testimony that the husband was "drunk" or "under the influence of liquor" on one occasion prior to the separation is wholly insufficient to sustain a divorce on the ground of habitual intoxication. Stimpson v. Stimpson, 213 Ga. 235, 98 S.E.2d 559 (1957).

Provision on incurable mental illness strictly construed.

- Since the settled law in this state is that, unless authorized by statute, insanity or other mental incapacity arising after marriage is not cause for divorce, any change in the settled law by statute making postnuptial insanity a ground for divorce should be strictly construed. Shelton v. Shelton, 209 Ga. 454, 74 S.E.2d 5 (1953).

Law did not create any new right to support and maintenance after a divorce granted to the husband on the grounds of incurable insanity. Morris v. Bruce, 98 Ga. App. 821, 107 S.E.2d 262 (1959).

RESEARCH REFERENCES

Am. Jur. 2d.

- 24 Am. Jur. 2d, Divorce and Separation, §§ 19 et seq., 324 et seq.

8B Am. Jur. Pleading and Practice Forms, Divorce and Separation, § 32.

C.J.S.

- 27A C.J.S., Divorce, § 21 et seq.

ALR.

- Sufficiency of allegation of adultery in suit for divorce, 2 A.L.R. 1621.

Desertion as affected by element of remonstrance or resistance, 3 A.L.R. 503.

Forcing spouse to get rid of child by former marriage as cruelty constituting ground for divorce, 3 A.L.R. 803.

Abuse by relatives of other spouse as cruelty constituting ground for divorce, 3 A.L.R. 993.

Conduct amounting to treatment endangering life within statute defining grounds for divorce, 5 A.L.R. 712.

Venereal disease as ground for divorce or annulment of marriage, 5 A.L.R. 1016; 8 A.L.R. 1540.

Desertion as affected by intimations of a possible consent to the renewal of marital relations in the future, 12 A.L.R. 1391.

Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 14 A.L.R. 121; 75 A.L.R. 663.

Divorce: offer after lapse of statutory period of desertion to resume marital relations, 18 A.L.R. 630.

Birth of child or miscarriage before or after lapse of normal period of gestation since access of husband as evidence of adultery, 21 A.L.R. 1457.

Divorce for desertion predicated upon conduct subsequent to a decree of separation, 25 A.L.R. 1047; 61 A.L.R. 1268.

Adultery by deserted spouse after desertion, as ground of divorce in favor of other spouse, 25 A.L.R. 1051.

Refusal of one spouse to live with relatives of other as affecting desertion as ground of divorce or separation, 47 A.L.R. 687.

Charges, in divorce suit, of marital misconduct as cruelty within statute defining grounds of divorce, 51 A.L.R. 1188.

Necessity that drunkenness to constitute ground for divorce shall continue until commencement of suit or later, 54 A.L.R. 331.

Divorce for desertion predicated upon conduct subsequent to a decree of separation, or divorce a mensa et thoro, 61 A.L.R. 1268.

Discretion as to denial of divorce or separation where statutory grounds are established, 74 A.L.R. 271.

Insistence on living with relatives as cruelty for purposes of divorce or separation, 76 A.L.R. 985.

Request or demand for resumption of marital relations as affected by conditions attached or alternatives suggested, 76 A.L.R. 1023.

Divorce a vinculo for desertion predicated upon conduct prior to decree of separation, 95 A.L.R. 234.

Subsequent adultery as recriminatory defense to desertion or cruelty, 101 A.L.R. 646.

Insanity as substantive ground of divorce or separation, 113 A.L.R. 1248; 24 A.L.R.2d 873.

What amounts to habitual intemperance, drunkenness, excessive drug use, and the like within statute relating to substantive grounds for divorce, 101 ALR6th 455.

Cruelty predicated upon acts or conduct during separation as ground for divorce or separation, 129 A.L.R. 160.

Character or nature of crime contemplated by statute as substantive ground for divorce, 135 A.L.R. 851.

Construction and application of statutory provision requiring security for maintenance of defendant as condition of divorce or annulment of marriage because of insanity, 141 A.L.R. 946.

Accusation of improper relations as cruelty constituting ground for divorce or separation, 143 A.L.R. 623.

Separation due to husband's refusal or inability to support wife as desertion within divorce statute, 150 A.L.R. 991.

Association or conduct of spouse with persons of opposite sex as cruelty or abusive treatment justifying divorce or separation, 157 A.L.R. 631.

Doctrine of comparative rectitude in divorce cases, 159 A.L.R. 734.

Conduct of plaintiff in divorce suit, not of itself a cause for divorce, as basis of defense of recrimination, 159 A.L.R. 1453.

Divorce on ground of husband's gifts of his property to third persons, 160 A.L.R. 620.

Recrimination as an absolute or qualified defense in divorce cases, 170 A.L.R. 1076.

Validity and construction of statute respecting divorce in favor of spouse whose husband or wife has obtained divorce in another state, 175 A.L.R. 293.

Testimony of children as to grounds of divorce of their parents, 2 A.L.R.2d 1329.

Avoidance of procreation of children as ground for divorce or annulment of marriage, 4 A.L.R.2d 227.

Antenuptial knowledge relating to alleged grounds as barring right to divorce, 15 A.L.R.2d 670.

Requisites of proof of insanity as a ground for divorce, 15 A.L.R.2d 1135.

What constitutes duress sufficient to warrant divorce or annulment of marriage, 16 A.L.R.2d 1430.

Insanity as affecting right to divorce or separation, 19 A.L.R.2d 144.

Conviction in another jurisdiction as within statute making conviction of crime a ground of divorce, 19 A.L.R.2d 1047.

Divorce: acts or omissions of spouse causing other spouse to leave home as desertion by former, 19 A.L.R.2d 1428.

Insanity as substantive ground of divorce or separation, 24 A.L.R.2d 873.

Racial, religious, or political differences as ground for divorce, separation, or annulment, 25 A.L.R.2d 928.

Wife's failure to follow husband to new domicile as constituting desertion or abandonment as ground for divorce, 29 A.L.R.2d 474.

Condonation of cruel treatment as defense to action for divorce or separation, 32 A.L.R.2d 107.

Charge of insanity or attempt to have spouse committed to mental institution as ground for divorce or judicial separation, 33 A.L.R.2d 1230.

Sufficiency of allegations of desertion, abandonment, or living apart as ground for divorce, separation, or alimony, 57 A.L.R.2d 468.

Concealed premarital unchastity or parenthood as ground of divorce or annulment, 64 A.L.R.2d 742.

What constitutes impotency as ground for divorce, 65 A.L.R.2d 776.

Charging spouse with criminal misconduct as cruelty constituting ground for divorce, 72 A.L.R.2d 1197.

Drunkenness, habitual intemperance, or use of drugs as constituting cruelty as a ground for divorce, 76 A.L.R.2d 419.

Homosexuality as ground for divorce, 78 A.L.R.2d 807.

Divorce: time of pendency of former suit for divorce, annulment, alimony, or maintenance as included in period of desertion, 80 A.L.R.2d 855.

Mistreatment of children as ground for divorce, 82 A.L.R.2d 1361.

Threats or attempts to commit suicide as cruelty or indignity constituting a ground for divorce, 86 A.L.R.2d 422.

Insistence on sex relations as cruelty or indignity constituting ground for divorce, 88 A.L.R.2d 553.

Acts occurring after commencement of suit for divorce as ground for decree under original complaint, 98 A.L.R.2d 1264.

Construction of statute making bigamy or prior lawful subsisting marriage to third person a ground for divorce, 3 A.L.R.3d 1108.

Single act as basis of divorce or separation on ground of cruelty, 7 A.L.R.3d 761.

Power of court to grant absolute divorce to both spouses upon showing of mutual fault, 13 A.L.R.3d 1364.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce, 14 A.L.R.3d 502.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 A.L.R.3d 759.

Retrospective effect of statute prescribing grounds of divorce, 23 A.L.R.3d 626.

Separation within statute making separation a substantive ground of divorce, 35 A.L.R.3d 1238.

Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589.

Refusal of sexual intercourse as justifying divorce or separation, 82 A.L.R.3d 660.

Transvestism or transsexualism of spouse as justifying divorce, 82 A.L.R.3d 725.

What constitutes "incompatibility" within statute specifying it as substantive ground for divorce, 97 A.L.R.3d 989.

Insanity as defense to divorce or separation - post 1950 cases, 67 A.L.R.4th 277.

Homosexuality as ground for divorce, 96 A.L.R.5th 83.

What amounts to habitual intemperance, drunkenness, excessive drug use, and the like within statute relating to substantive grounds for divorce, 101 A.L.R.6th 455.

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