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

Rule:

Connivance is defined as the plaintiff's consent, express or implied, to the misconduct alleged as a ground for divorce. Connivance denotes direction, influence, personal exertion, or other action with knowledge and belief that such action would produce certain results and which results are produced. The defense of connivance is based on the maxim "volenti non fit injuria," or that one is not legally injured if he or she has consented to the act complained of or was willing that it should occur.

Facts:

Prior to their divorce proceeding, when their marriage was breaking down, the wife encouraged the husband to meet another woman and live with her for a period of time prior to him getting married again. The wife also signed a document that she would not use the husband's behavior in this regard against him in any future divorce proceedings. After the husband engaged in the behavior, the wife sued for divorce on the grounds of adultery. The husband raised the defense of connivance and the trial court granted the divorce on no-fault grounds. The wife appealed, contending that the evidence did not support a finding of connivance and that the husband’s failure to plead connivance barred his assertion of it.

Issue:

1. Did the evidence in this case support a finding of connivance?
2. Under the circumstances, was the husband barred from asserting the defense of connivance?

Answer:

1) Yes. 2) No.

Conclusion:

The Court held that the evidence supported the trial court's finding of the wife's connivance in the husband's misconduct. The wife’s letters and note supported the finding that she encouraged, as well as consented to, the husband’s adulterous relationship. The Court further held that the husband was not barred from asserting this defense because he had not expressly pleaded the defense of connivance or condonation. His answer to the wife's cross-bill expressly denied her allegations that he had committed adultery that she had not procured or condoned.