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I was reading this article A North Carolina man just won U$S 750,000 lawsuit after suing his wife lover which mentions men earning figures such as U$S 750,000 or even U$S 8,800,000 for suing his wife's lover. Do laws like this exist in any other western country? And by western I mean the definition of western world which includes Europe, Canada, Australia and New Zealand.

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    They certainly used to exist in England (but were abolished some considerable time ago). Oct 5, 2019 at 16:30
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    This was actually a common law case: it's a crime because the courts themselves made it one, effectively. There's no actually codified statute for this in NC (or I think anywhere else in the US). In most of the US this sort of common law tort (indeed, almost every common law tort) has been officially abolished or put into actual laws. NC is one of the few where this is not the case. Oct 7, 2019 at 10:56
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    @zibadawatimmy It's now codified in NC. Oct 7, 2019 at 17:53
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    To the best of my knowledge, no. There are no other Western countries with such laws. But, I'm not omniscient. washparkprophet.blogspot.com/2010/09/… Many states have statutorily abolished the action and in Colorado it is a crime to even attempt to file or settle such a case.
    – ohwilleke
    Oct 7, 2019 at 22:48
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    @ohwilleke this was made in half jest, but I sense you followed suit. :)
    – kisspuska
    Oct 15, 2021 at 16:43

2 Answers 2

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Canada: Not since 1962.

The nail in the coffin for alienation of affection torts in Canada was the 1962 Kungl v. Schiefer Supreme Court of Canada decision which held 'there is no separate cause of action for “alienation of affections” known to the law of Ontario.'

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Overview

These laws suits are called "heart balm torts" with "alienation of affections" and "criminal conversation" being the most commonly utilized of several similar torts. They originally came into being in England and Wales, but are no longer available causes of action there. A scholarly review can be found in a 1985 Michigan Law Review article. See also a 2012 law review article defending the North Carolina tort, and a 2013 law review article on the subject, which notes that the intentional infliction of emotional distress tort may provide relief in the same fact pattern in some extreme cases.

Heartbalm actions in the United States typically include seduction, criminal conversation, alienation of affection, and breach of promise to marry. Of these, criminal conversation and alienation of affection are marital torts, originally restricted to husbands but in many states later made available to spouses regardless of gender. Seduction and breach of promise are nonmarital torts.

In England and other common law jurisdictions, additional heartbalm actions were traditionally recognized, such as enticement and wrongful harbouring (tortious refusal to allow a husband to visit a wife who has left him). A claim for damages based on loss of consortium is also sometimes considered a heartbalm action in England and elsewhere.

In the United States, heartbalm actions were widespread until high-profile stories in the early 20th century about heartbalm claims being abused for blackmail and extortion led to calls for repeal. The first state to abolish all heartbalm actions was Indiana, with “An Act to promote public morals” in 1935. By 1952, 16 more states had followed its example. Many states that abolished other heartbalm torts retained the tort of seduction, however; of the ten states that had abolished heartbalm actions by 1938, four allowed minors to sue for seduction and three more kept the tort of seduction intact.

Following a report by the Law Reform Committee in 1963, England abolished all of the traditional heartbalm torts (excluding loss of consortium) by statute in 1970.

As noted by Canada abolished these claims in the Canadian Supreme Court case of Kungl v. Schiefer decided in 1962. Most of the provinces in Canada had already abolished these actions on a piecemeal province by province, tort by tort basis, at that time.

Australia abolished such lawsuits in 1975:

Alienation of affection actions in Australia stopped being good law since 1975, with the passing of the Family Law Act 1975. In the new system, outlined by the statute, there exists a fault-less ground of divorce, and that is irretrievable breakdown of a marriage, which is evidenced by 12 months of separation. Spousal behaviour though, can be a consideration a court may take into account during a property settlement.

As the Wikipedia article on adultery notes:

In common-law countries, adultery was also known as criminal conversation. This became the name of the civil tort arising from adultery, being based upon compensation for the other spouse's injury. Criminal conversation was usually referred to by lawyers as crim. con., and was abolished in England in 1857, and the Republic of Ireland in 1976. Another tort, alienation of affection, arises when one spouse deserts the other for a third person. This act was also known as desertion, which was often a crime as well.

Some jurisdictions that do not allow a separate lawsuit for these torts, however, do allow consideration of fault including actions within the scope of these torts in some divorce cases.

Adultery

Also, some jurisdictions (at least) still criminalize adultery, providing criminal, but not civil lawsuit sanctions for this conduct. The Wikipedia article on adultery (references omitted in this quotation) notes that:

Traditionally, many cultures, particularly Latin American ones, had strong double standards regarding male and female adultery, with the latter being seen as a much more serious violation.

Adultery involving a married woman and a man other than her husband was considered a very serious crime. In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man's wife was "the highest invasion of property" and claimed, in regard to the aggrieved husband, that "a man cannot receive a higher provocation" (in a case of murder or manslaughter).

Legal definitions of adultery vary. For example, New York defines an adulterer as a person who "engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse." North Carolina defines adultery as occurring when any man and woman "lewdly and lasciviously associate, bed, and cohabit together." Minnesota law provides: "when a married woman has sexual intercourse with a man other than her husband, whether married or not, both are guilty of adultery." In the 2003 New Hampshire Supreme Court case Blanchflower v. Blanchflower, it was held that female same-sex sexual relations did not constitute sexual intercourse, based on a 1961 definition from Webster's Third New International Dictionary; and thereby an accused wife in a divorce case was found not guilty of adultery. In 2001, Virginia prosecuted an attorney, John R. Bushey, for adultery, a case that ended in a guilty plea and a $125 fine. Adultery is against the governing law of the U.S. military.

In Canada, though the written definition in the Divorce Act refers to extramarital relations with someone of the opposite sex, a British Columbia judge used the Civil Marriage Act in a 2005 case to grant a woman a divorce from her husband who had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.

In the United Kingdom, case law restricts the definition of adultery to penetrative sexual intercourse between a man and a woman, no matter the gender of the spouses in the marriage, although infidelity with a person of the same gender can be grounds for a divorce as unreasonable behavior; this situation was discussed at length during debates on the Marriage (Same-Sex Couples) Bill.

In India, adultery is the sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. It was a non-cognizable, non-bailable criminal offence, until the relevant law was overturned by the Supreme Court of India on 27 September 2018.

U.S. Law Tort Law

[I]n fiscal years 2000–2007, there were an average of 230 alienation of affections filings in North Carolina per year — a bit over 0.5% of the number of all divorces. The tort is also recognized in Hawaii, Illinois, Mississippi, New Mexico, South Dakota, and Utah, but it seems to be often litigated only in North Carolina and (to an apparently smaller extent) in Mississippi[.]

Limitations On the Alienation of Affections Tort In Many States

Many of the states where the tort is not commonly used impose restrictions on it that make it less attractive.

In Illinois, Hawaii and New Mexico, these limitations make it exceedingly difficult to prevail in an alienation of affections case and recover substantial monetary damages.

The standard is lower in Utah and South Dakota, which continue to have actively litigated alienation of affections suits, although not used as often as in North Carolina and Mississippi.

Support for the retention of the alienation of affections cause of action is not unanimous among state supreme court judges in any of these states.

Illinois

"Illinois only permits actual damages to be recovered in alienation of affection actions 740 Ill. Comp. Stat. Ann. 5/2 (1990) [quoted from a case mentioned below from Mississippi]." Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits.

Hawaii

The most recent (and only) appellate decision in Hawaii is Hunt v. Chang, 594 P.2d 118 (Hawaii 1979), which a case was dismissed on a motion for summary judgment because the person bringing the suit against his wife's lover failed to show in his prima facie case that: "The (plaintiff's) spouse must not have voluntarily accepted defendant's advances at the outset of the affair," and that "The (plaintiff's) spouse must not have actively contributed to the procuration by intentionally seeking the companionship and the affection of the defendant." Establishing that an affair involved an unwilling partner is a difficult matter.

The plaintiff in Hawaii must also affirmatively show as part of the cause of action a lack of marital fault.

New Mexico

[In New Mexico, courts have recognized] the common law action for alienation of affections which authorized a husband to sue another for interference with his supposed "right" to the undiluted affections of his spouse. See Thompson v. Chapman, 93 N.M. 356, 358, 600 P.2d 302, 304 (Ct.App.1979). This Court has previously expressed its "disfavor" with such claims. See id.; see also Hakkila, 112 N.M. at 177-78, 812 P.2d at 1325-26. In Thompson, 93 N.M. at 358, 600 P.2d at 304, we explained our reasoning for concluding that the common law claim of alienation of affections should be abolished in New Mexico. We observed that the claim "diminishes human dignity. It inflicts pain and humiliation upon the innocent, monetary damages are either inadequate or punitive, and the action does not prevent human misconduct itself. In our judgment, the interests which the action seeks to protect are not protected by its existence, and the harm it engenders far outweighs any reasons for its continuance.

  • Padwa v. Hadley, 981 P.2d 1234 (N.M. App. 1999).

In Thompson, a motion to dismiss supported by affidavits prevailed on the grounds that the husband could not overcome a statement under oath from the wife that he assaulted his wife and there the relationship between them was dead before the new relationship began.

A 1991 New Mexico case cited in the Padwa ruling states that: "although the tort has not been formally abolished, our courts have expressed dissatisfaction with the tort of alienation of affection, which has features similar to the tort of outrage in the marital context."

The New Mexico Supreme Court noted in 1991 in the case of Lovelace Medical Center v. Mendez, 805 P.2d 603 (N.M. 1991), that the cause of action is viewed with disfavor in the state.

South Dakota

South Dakota does not permit insurance coverage for alienation of affections lawsuits, thus limiting a possible source of recovery. State Farm fire and Casualty Co. v. Harbert, 741 N.W.2d 228 (S.D. 2007). But, the alienation of affections suit, created by statute, remains good law:

South Dakota at one time made adultery a crime. See SDCL 22-22-17 and -18 (repealed by SL 1976, ch 158, § 22-8). These statutes were repealed in 1976. Yet, since 1877 we have also recognized a civil cause of action for alienation of affections. SDCL 20-9-7. In Veeder v. Kennedy, 1999 SD 23, 589 N.W.2d 610, we upheld the continued civil cause of action as its statutory basis was still in force despite the fact the criminal liability had long since been repealed.

  • Benson v. State, 710 N.W.2d 131 (S.D. 2006).

The Veeder decision in South Dakota was a fractured decision (2 voting for, one concurring but urging the legislature to repeal the law, one dissenting arguing that the bar was set too low in jury instructions). South Dakota's standard of relief is much less focused on misconduct by the spouse who was a party to the affair and the person suing than Hawaii and New Mexico.

South Dakota also limits punitive damage awards to 20% of the defendant's net worth, has relatively few divorce, has a small population, and has juries that tend to impose small jury awards in civil actions.

Utah

The Utah Supreme Court upheld in a 3-2 decision, the alienation of affections tort, but not the criminal conversion tort in 1991. Norton v. Macfarlane, 818 P.2d 8 (Utah 1991). Two justices wanted to keep both, two wanted to abolish both, and one split the difference. The swing justice noted that "it is not often that full responsibility for the breakdown of a marriage can be attributed with any great degree of assurance to one or the other of the parties, let alone solely to the conduct of a third person," and singled out violations of positions of trust by the defendant as a typical case.

Other States

It is actually a crime to bring in court, or settle, an alienation of affections suit in Colorado.

The fact that North Carolina and Mississippi are places one associates with strong tort reform efforts makes this litigious approach particularly notable.

Mississippi's Supreme Court decided to retain the alienation of affects tort in its 2007 decision in Fitch v. Valentine (5 justices supported it, 2 dissented, and 1 concurred that this was the law, while arguing in a concurrence that: "In my view, Mississippi should abandon the five other states which continue to fully recognize the antiquated common law tort of alienation of affections, and join the forty-two states who refuse to do so.").

There is no binding U.S. Supreme Court precedent on the constitutional validity of the tort, it has denied certiorari in prior cases in the 21st century raising the issue. A North Carolina judge held in Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014) that North Carolina’s torts of “alienation of affections” and “criminal conversation” are unconstitutional (but to the best of my knowledge, this ruling failed to create a binding precedent to that effect and its holding was rejected in an appeal to the North Carolina Court of Appeals in another similar case in 2017).

Other Countries

I am not aware of any other common law legal system jurisdictions such as New Zealand, the British dependencies, and to some extent, India, that continue to recognize heart balm torts (with the possible exception of suits seeking returns of engagement rings in a breach of promise to marry lawsuit or similar claim).

I am unaware of whether or not most Western civil law countries have analogous forms of lawsuits. But, Germany abolished a heart balm type tort action in 1998:

The obsolete German legal concept Kranzgeld (literally "wreath money") is heart balm (see breach of promise) rewarded as compensation to a woman of "immaculate reputation" if a man broke off his engagement (or caused it to be broken off e.g. through infidelity) after having had sexual intercourse with her. Immaculate reputation in this context meant mainly virginity, but could also be lost through other factors such as being convicted of a crime.

The loss of virginity, it was assumed, would diminish the woman's expectations to gain a good match for a husband. Thus, the money is a form of legal damages.

The term refers to the wreath that a bride traditionally wears at her wedding. In some European cultures, notably Germany, a virgin bride was entitled to wear a wreath of myrtle flowers; a non-virgin bride, on the other hand, had to wear a wreath made of straw.

In Germany, Kranzgeld was regulated in paragraph §1300 of the family law, part of the civil code Bürgerliches Gesetzbuch published in 1896 and taking effect in 1900. After being long considered irrelevant, it was finally abolished on May 4, 1998, when the entire law was renewed, on the occasion of a trial in 1993 where the judges decided the law was outdated. A woman had then tried to sue for 1000 DM (in 2004, roughly €500 or $500), but the request was denied on the grounds of equal rights between man and woman.

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