N.C.P.I.—Civil 815.71

NOTE WELL: Condonation is generally an affirmative

defense and must usually be alleged in the pleadings.2

However, if facts alleged in the complaint constitute

condonation (such as resumption of the marriage after

the defendant’s misconduct), the defendant is not

required to plead the affirmative defense of

condonation in the answer.3 Further, a party who is

not permitted to file a responsive pleading that would

contain allegations of condonation may raise that

defense at trial.4

The (state number) issue reads: Did the [plaintiff] [defendant],

(state name of offended spouse), condone marital misconduct5 committed

during the marriage and prior to or on the date of separation by the

[plaintiff] [defendant], (state name of offending spouse)?6

You will answer this issue only if you have answered Issue (state

number) in favor of the [plaintiff] [defendant].

For purposes of this instruction, condone means forgive, and I will

use the words condone and forgive, and condonation and forgiveness,

interchangeably as I discuss this issue with you.

On this issue, the burden of proof is on the [plaintiff] [defendant].7

This means that the [plaintiff] [defendant] must prove, by the greater

weight of the evidence that the [plaintiff] [defendant], with knowledge of

his spouse’s marital misconduct, condoned or forgave his spouse for that

conduct.8

The definition[s] and explanation[s] of [the different types of]

marital misconduct which I gave you in discussing Issue (state number)

apply equally to this issue and I charge you to remember and use [that]

[those] definition[s] and explanation[s] in your deliberations on this

issue.

In order to condone or forgive marital misconduct, a spouse must

know that such marital misconduct occurred. This means that before

marital misconduct can be forgiven, the spouse must have actual

knowledge of the marital misconduct or have knowledge of facts which

would satisfy a reasonably prudent person that the marital misconduct

had been committed.9 Mere suspicion without facts or knowledge to

support such suspicion will not suffice.10 In addition, it must appear that

a spouse not only knew of the marital misconduct, but also accepted it as

true.11

A spouse condones or forgives marital misconduct when he

voluntarily elects to [continue] [resume] the marital relationship with the

spouse who has committed marital misconduct.12 [Continuation]

[Resumption] of the marital relationship means voluntary [continuation]

[renewal] of the husband and wife relationship, as shown by the totality

of the circumstances.13

[Evidence that the plaintiff and defendant engaged in sexual

intercourse after the [plaintiff] [defendant] forgave his spouse for act(s)

of marital misconduct is not required.14]

[Evidence of voluntary sexual intercourse between the plaintiff and

the defendant after the [plaintiff] [defendant] has actual knowledge of

the adultery of his spouse, or has knowledge of facts which would satisfy

a reasonably prudent person that his spouse had committed adultery, is

considered evidence of a spouse’s forgiveness of adultery on the part of

the offending spouse,15 and should be considered with all the other facts

and circumstances in evidence].

Forgiveness may be express or implied. Express forgiveness is

when a [husband] [wife] states to his spouse who has committed marital

misconduct, “I forgive you for (state alleged marital misconduct)” or

similar words to that effect.16

Forgiveness is implied when a husband and wife [continue]

[resume] the marital relationship after a spouse has knowledge of marital

misconduct by his spouse.17 [However, forgiveness is not implied simply

because spouses live in the same residence.18] [Isolated incidents of

sexual intercourse between the parties do not constitute resumption of

marital relations.19]

Finally, as to this (state number) issue on which the [plaintiff]

[defendant] has the burden of proof, if you find by the greater weight of

the evidence, that the [plaintiff] [defendant], with knowledge of the

marital misconduct of his spouse, forgave his spouse for that marital

misconduct, then it would be your duty to answer this issue “Yes” in favor

of the [plaintiff] [defendant].

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the [plaintiff] [defendant].