Physical violence is required in order to get a divorce based on physical cruelty. South Carolina law defines physical violence as “actual personal violence or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe.” Brown v. Brown, 215 S.C. 502, 508, 56 S.E.2d 330 (1949). Case decisions that determine if the facts constitute physical cruelty are governed by the individual facts and circumstances in each case.
South Carolina courts in determining whether the facts allow for a divorce for physical cruelty were considered in the Brown case. The wife claimed her husband slapped her twice and also pinched her during their marriage. The Supreme Court denied the divorce and reasoned that “continued acts of personal violence producing physical pain or bodily injury and a fear of future danger are recognized as sufficient cause accompanied by other acts of ill treatment.” Brown, 215 S.C. 502, 509, 56 S.E.2d 330 (1949). However, not every slight violence, even acts committed in anger, will authorize the divorce.
A single act of physical cruelty is generally not sufficient to constitute a ground for divorce. However, if the single act is so severe and atrocious as to endanger life, or the act shows a person’s intent to do serious bodily harm or· reasonably causes apprehension of future serious harm, then it may be sufficient for divorce. In some cases, the courts have allowed a divorce on a single act of aggravated cruelty if the facts and circumstances indicate that the acts are likely to be repeated. In McDowell v. McDowell, a divorce was granted based on physical cruelty when the wife shot the husband once in the chest at point blank range. McDowell v. McDowell, 300 S.C. 96, 99, 386 S.E.2d 468, 469 (Ct.App. 1989). Similarly, in McKenzie vs. McKenzie, the wife shot her husband in the chest as he was leaving a social club. McKenzie vs. McKenzie, 254 S.C. 372, 175 S.E.2d 628 ( 1970). Thus, a single assault can constitute physical cruelty is the assault is life threatening or indicates an intention to do serious bodily harm or is of such a degree as to raise a reasonable apprehension of future bodily harm.
The party requesting a divorce on the grounds of physical cruelty must prove physical cruelty by the preponderance of the evidence by showing the history between the couple before the violence occurred and what happened after the physical violence. Brown, at 509, 56 S.E2d at 333. For example, the court of appeals in the Gorecki v. Gorecki case, upheld a divorce on the ground of physical cruelty. The trial court granted the divorce based on the fact that the physical violence was accompanied by verbal abuse, the husband destroyed the wife’s phone, and there was a long history of abuse during their marriage. Gorecki v Gorecki, 387 S.C. 626, 693 S.E2d 419 (Ct.App. 2010).
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.