In Manning v. Manning, the Supreme Court of Georgia held that a divorce must be granted on a motion for summary judgment after one spouse alleges an irretrievable breakdown of the marriage and then swears in an affidavit that he is unwilling to cohabit with his spouse, that there are no prospects for reconciliation and that the marriage is irretrievably broken. There is, at that point, no issue of fact for the trial court to resolve, the supreme court said.
The husband in Manning filed a complaint for divorce alleging that the marriage was irretrievably broken. The wife in her answer denied the irretrievable breakdown of the marriage and affirmatively alleged that the marriage was not irretrievably broken and that there were reasonable prospects for reconciliation. The husband moved for summary judgment on the sole issue of the irretrievable breakdown of the marriage. In support of the motion he filed an affidavit in which he swore that the separation between the parties was complete and permanent, that he was unwilling to live with his wife at the present time or at anytime in the future, and that there was no possibility of reconciliation. The wife filed an opposing affidavit in which she testified that the marriage was not irretrievably broken because a reconciliation might be possible and she desired to reconcile. The trial judge granted the divorce on the motion for summary judgment. The wife appealed. She contended that irretrievability was an issue of fact that could not be resolved on summary judgment.
Carswell, Kenneth R.
"Summary Judgment for Divorce Required When One Spouse Swears to Irretrievable Breakdown,"
Mercer Law Review: Vol. 28:
1, Article 29.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol28/iss1/29