Continuing our periodic series on adultery and divorce, this article focuses on the methods of proving a spouse’s adultery in a divorce action, and the significant changes in Georgia law which have made that task easier to accomplish nowadays.

The year 1982 forms the critical demarcation between the evidence limitations under old Georgia law and the more lenient evidentiary standards under modern rules.

Before 1982, statutory provisions made parties incompetent to testify to their own or their spouses’ adultery in divorce and other proceedings based on adultery claims.(1) Parties in such proceedings could not testify to any facts showing or tending to show adultery either.(2) As a result, adultery had to be proven through evidence other than the testimony of the parties.(3)

In part because of those evidentiary limitations, Georgia law permitted parties to prove adultery by circumstantial evidence. The law placed impediments even there though, by requiring the circumstantial evidence to infer as a necessary conclusion that adultery was committed. If the evidence was “fairly susceptible of two interpretations, one consistent with innocence and the other with guilt,” that evidence would not suffice to prove adultery.(4) The circumstantial evidence also had to show both an opportunity and an “adulterous disposition” in order for adultery to be inferred.(5)

One form of circumstantial evidence allowed under old Georgia law concerned adverse inferences. Parties in civil proceedings not “instituted in consequence of adultery,” as well as non-party witnesses in any civil action, who invoked their privilege against self-incrimination in response to questions about adultery or illicit sexual relations, could have adverse inferences drawn against them. Those adverse inferences deemed privileged refusals to testify as implied admissions that truthful answers would tend to prove that the witnesses had committed the alleged incriminating acts.(6)

In 1982, amendments to the Georgia Code eliminated the witness-competency limitations. Those amendments made clear that no person offered as a witness would be excluded by reason of being a party, and spouses in civil proceedings would each be competent to testify to the adultery of the other.(7) As a result of those amendments, spouses in divorce and other civil actions subsequently could testify to the other’s admission of adultery, to their own knowledge of the other’s adulterous acts, and to any facts showing or tending to show adultery of the other.

While the 1982 amendments to the Georgia Code made clear changes to state law on witness-competency regarding adultery, no similar clarity arose as to other proof limitations vis-à-vis adultery. Though it remains clear that the invocation of the privilege against self-incrimination by a testifying party or other witness in a civil proceeding still will enable an adverse inference to be drawn(8), this author knows of no statute or published appellate decision issued since 1982 which answers whether the pre-1982 requirements for and limitations of circumstantial evidence continue to apply. Nonetheless, in the absence of a subsequent statute or published appellate decision expressly stating the contrary, rules of precedence seemingly dictate that those old requirements and limitations continue to govern the use and sufficiency of circumstantial evidence to prove adultery in a divorce case or other civil action.

(1) See Owens v. Owens, 247 Ga. 139, 140(1), 274 S.E.2d 484 (1981), citing Bryan v. Bryan, 242 Ga. 826, 830, 251 S.E.2d 566 (1979). (2) Owens, supra, 247 Ga. at 140(1), citing Bodrey v. Bodrey, 246 Ga. 122, 124, 269 S.E.2d 14 (1980). (3) Owens, supra, 247 Ga. at 141(4). (4) Johnson v. Johnson, 218 Ga. 28(1), 126 S.E.2d 229 (1962). (5) Id. (6) See Simpson v. Simpson, 233 Ga. 17, 21, 290 S.E.2d 611 (1974). See also O.C.G.A. § 16-6-19; U.S. Const. am. 5; Ga. Const. art. I, § I, para. XVI; and Temple v. Temple, 228 Ga. 73, 184 S.E.2d 183 (1971). (7) See former O.C.G.A. §§ 24-9-1 and 24-9-2. (8) See, e.g., In Re SB, 242 Ga. App. 184, 186-187 fn. 4, 528 S.E.2d 278 (2000); and Ostroff v. Coyner, 187 Ga.App. 109, 116(4), 369 S.E.2d 298 (1988).

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