The Difficulties of Proving Adultery

Proving Adultery is Not New. The Concept Has Been Around a Long, Long Time

Adultery is a part of human history. It also has many meanings. South Carolina law has narrowed the definition slightly.

Early South Carolina cases such as Hull v. Hull define adultery as “illicit intercourse of two persons, one of whom, at least, is married.” However, the court of appeals has held that intercourse isn’t the final test for adultery. If the facts suggest adultery, sexual intimacy is enough. This includes both physical acts and the partners’ intent.

South Carolina’s Test to Prove Adultery

Therefore, South Carolina uses a two-pronged test to deal with alleged adultery. Courts sift through the facts and then decide if adultery occurred.

The first prong of the test is motive. Thus, one spouse must have had sexual desire for another person. Proving this is a tough task. However, modern technology makes the task much easier.  Emails, texts, and social media posts provide glimpses into the mind of the spouse. Social media especially plays a growing role as evidence of adultery. Because the evidence is available to everyone on the internet, social media posts are often seen and saved by other parties.

The second prong of the test is opportunity. To prove this, the accusing party must show that their spouse was spending time alone with their lover. Thus, one must prove that the couple had the chance to engage in a sexual act. The facts are very important for this prong. South Carolina courts require that proof be “sufficiently definite to establish the place and time.” One instance of hearsay simply isn’t enough.

Remember, in SC Family Law, you must meet these two prongs for adultery. A lawyer can look at your facts and decide how hard it will be proving adultery in your case.