John W. Wheeler


"Connivance" has been defined as consent of the complainant, express or implied, to the misconduct now alleged as a ground for divorce." The element of corrupt consent is considered to be an essential ingredient. Once established, connivance represents a bar to a divorce. The courts have reasoned that a spouse whose conduct facilitated to the other's adultery has no more right to complain of his mate's sexual unfaithfulness than does a husband whose wife has been raped. The underlying principle is expressed by the latin aphorism, "Volenti non fit injuria," which means, "He who consents cannot receive an injury."

Mere passive endurance or unrelated misconduct does not make the party giving such permission or engaging in such misconduct guilty of connivance, provided that he does nothing to encourage the other to commit the transgression, and does not directly or indirectly throw opportunities in the other's way." Connivance will not be inferred from mere negligence, folly, dullness of apprehension, or simple indifference; nor as a rule will desertion be regarded as connivance, although under some circumstances it has been so construed. In short, a divorce defendant cannot successfully use the defense of connivance unless he can show that the plaintiff manifested a desire, or at least a willingness, that the misconduct now complained of take place.

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