## Facts

- Husband sought a no-fault divorce; wife filed a cross-bill seeking a fault-based divorce for husband’s adultery.
- Husband admitted an adulterous relationship occurring before the parties separated.
- Husband introduced writings and an agreement attributed to the wife indicating advance consent to, and facilitation of, the relationship:
  - A letter encouraging him to pursue a relationship with the other woman.
  - A note accompanying flowers sent to the husband and the other woman at a hotel wishing them a “new beginning.”
  - A signed writing consenting to his moving out, acknowledging he might live with another woman, and stating she would not use that fact against him in future divorce proceedings.
- The circuit court granted the husband a no-fault divorce and denied the wife’s adultery claim, finding the adultery resulted from the wife’s connivance and procurement.
- Wife appealed, challenging both the sufficiency of evidence of connivance and the ability to rely on connivance without expressly pleading it.

## Issues

1. Whether the evidence supported the finding that the husband’s adultery resulted from the wife’s connivance and procurement, barring her from obtaining a divorce on that ground.
2. Whether connivance must be expressly pleaded as an affirmative defense to bar a divorce based on adultery.

## Decision

- The Court of Appeals of Virginia affirmed the decree granting a no-fault divorce to the husband and denying the wife’s adultery-based divorce claim.
- The court held the trial court’s finding of connivance and procurement was supported by the wife’s writings and agreement demonstrating prior consent and encouragement.
- The court held connivance did not have to be expressly pleaded by name; it could be considered where the pleadings and record placed entitlement to an adultery-based divorce in dispute and the evidence showed connivance.

## Legal Principles

- Connivance is a spouse’s prior consent—express or implied—to the misconduct alleged as a divorce ground; it may include direction, influence, or actions undertaken with knowledge that the misconduct will occur.
- A spouse who consents to, encourages, or helps bring about the other spouse’s adultery cannot claim to be legally injured by that adultery and may be barred from obtaining a divorce on that ground.
- Condonation differs from connivance: condonation is forgiveness after misconduct (commonly shown by resumption of marital relations), while connivance occurs before misconduct.
- A court may deny a divorce when the record shows the complaining spouse connived in the misconduct, even if connivance is not separately labeled in the pleadings.

## Conclusion

The court affirmed that a spouse’s advance consent and facilitation of adultery constitutes connivance that bars a fault-based divorce for adultery, and that the doctrine may be applied when revealed by the evidence and issues joined, without being specially pleaded by name.


Hollis v. Hollis, 16 Va. App. 74, 427 S.E.2d 233 (Va. Ct. App. 1993)