marriage
Do &quot;homewrecker&quot; laws exist in any other western country than United States?
<p>I was reading this article <a href="https://www.wyff4.com/article/a-north-carolina-man-just-won-a-750-000-lawsuit-after-suing-his-wife-s-lover/29342654" rel="nofollow noreferrer">A North Carolina man just won U$S 750,000 lawsuit after suing his wife lover</a> which mentions men earning figures such as U$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.</p>

<p><strong>Canada:  Not since 1962.</strong></p>

<p>The nail in the coffin for alienation of affection torts in Canada was the <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/3998/index.do" rel="nofollow noreferrer">1962 Kungl v. Schiefer Supreme Court of Canada decision</a> which held 'there is no separate cause of action for “alienation of affections” known to the law of Ontario.'</p>

<p><strong>Overview</strong></p>
<p>These laws suits are called &quot;<a href="https://en.wikipedia.org/wiki/Heartbalm_tort" rel="nofollow noreferrer">heart balm torts</a>&quot; with &quot;alienation of affections&quot; and &quot;criminal conversation&quot; 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 <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2615&amp;context=mlr" rel="nofollow noreferrer">1985 Michigan Law Review article</a>. See also a <a href="https://core.ac.uk/download/pdf/151514973.pdf" rel="nofollow noreferrer">2012 law review article defending the North Carolina tort</a>, and a <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2000&amp;context=facsch_lawrev" rel="nofollow noreferrer">2013 law review article</a> 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.</p>
<blockquote>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
</blockquote>
<p>As noted by Canada abolished these claims in the Canadian Supreme Court case of <em>Kungl v. Schiefer</em> 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.</p>
<p>Australia <a href="http://en.wikipedia.org/wiki/Alienation_of_affections" rel="nofollow noreferrer">abolished such lawsuits in 1975</a>:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>As the Wikipedia article on adultery notes:</p>
<blockquote>
<p>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 <em>crim.
con.</em>, 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.</p>
</blockquote>
<p>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.</p>
<p><strong>Adultery</strong></p>
<p>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:</p>
<blockquote>
<p>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.</p>
<p>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 &quot;the highest invasion of property&quot; and claimed,
in regard to the aggrieved husband, that &quot;a man cannot receive a
higher provocation&quot; (in a case of murder or manslaughter).</p>
<p>Legal definitions of adultery vary. For example, New York defines an
adulterer as a person who &quot;engages in sexual intercourse with another
person at a time when he has a living spouse, or the other person has
a living spouse.&quot; North Carolina defines adultery as occurring when
any man and woman &quot;lewdly and lasciviously associate, bed, and cohabit
together.&quot; Minnesota law provides: &quot;when a married woman has sexual
intercourse with a man other than her husband, whether married or not,
both are guilty of adultery.&quot; In the 2003 New Hampshire Supreme Court
case <em>Blanchflower v. Blanchflower</em>, 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
</blockquote>
<p><strong>U.S. Law Tort Law</strong></p>
<blockquote>
<p>[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[.]</p>
</blockquote>
<p><strong>Limitations On the Alienation of Affections Tort In Many States</strong></p>
<p>Many of the states where the tort is not commonly used impose restrictions on it that make it less attractive.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p><em>Illinois</em></p>
<p>&quot;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].&quot; Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits.</p>
<p><em>Hawaii</em></p>
<p>The most recent (and only) appellate decision in Hawaii is <em>Hunt v. Chang</em>, 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: &quot;The (plaintiff's) spouse must not have voluntarily accepted defendant's advances at the outset of the affair,&quot; and that &quot;The (plaintiff's) spouse must not have actively contributed to the procuration by intentionally seeking the companionship and the affection of the defendant.&quot; Establishing that an affair involved an unwilling partner is a difficult matter.</p>
<p>The plaintiff in Hawaii must also affirmatively show as part of the cause of action a lack of marital fault.</p>
<p><em>New Mexico</em></p>
<blockquote>
<p>[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 &quot;right&quot; to the undiluted affections of
his spouse. <em>See Thompson v. Chapman</em>, 93 N.M. 356, 358, 600 P.2d 302,
304 (Ct.App.1979). This Court has previously expressed its &quot;disfavor&quot;
with such claims. <em>See id</em>.; <em>see also Hakkila</em>, 112 N.M. at 177-78, 812
P.2d at 1325-26. In <em>Thompson</em>, 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 &quot;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.</p>
</blockquote>
<ul>
<li><em>Padwa v. Hadley</em>, 981 P.2d 1234 (N.M. App. 1999).</li>
</ul>
<p>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.</p>
<p>A 1991 New Mexico case cited in the <em>Padwa</em> ruling states that: &quot;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.&quot;</p>
<p>The New Mexico Supreme Court noted in 1991 in the case of <em>Lovelace Medical Center v. Mendez</em>, 805 P.2d 603 (N.M. 1991), that the cause of action is viewed with disfavor in the state.</p>
<p><em>South Dakota</em></p>
<p>South Dakota does not permit insurance coverage for alienation of affections lawsuits, thus limiting a possible source of recovery. <em>State Farm fire and Casualty Co. v. Harbert</em>, 741 N.W.2d 228 (S.D. 2007). But, the alienation of affections suit, created by statute, remains good law:</p>
<blockquote>
<p>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 <em>Veeder
v. Kennedy</em>, 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.</p>
</blockquote>
<ul>
<li><em>Benson v. State</em>, 710 N.W.2d 131 (S.D. 2006).</li>
</ul>
<p>The <em>Veeder</em> 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.</p>
<p>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.</p>
<p><em>Utah</em></p>
<p>The Utah Supreme Court upheld in a 3-2 decision, the alienation of affections tort, but not the criminal conversion tort in 1991. <em>Norton v. Macfarlane</em>, 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 &quot;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,&quot; and singled out violations of positions of trust by the defendant as a typical case.</p>
<p><em>Other States</em></p>
<p>It is actually a crime to bring in court, or settle, an alienation of affections suit in Colorado.</p>
<p>The fact that North Carolina and Mississippi are places one associates with strong tort reform efforts makes this litigious approach particularly notable.</p>
<p>Mississippi's Supreme Court decided to retain the alienation of affects tort in its <a href="https://scholar.google.com/scholar_case?case=161681742041369888" rel="nofollow noreferrer">2007 decision</a> in <em>Fitch v. Valentine</em> (5 justices supported it, 2 dissented, and 1 concurred that this was the law, while arguing in a concurrence that: &quot;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.&quot;).</p>
<p>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 <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/16/the-first-amendment-protects-a-right-to-engage-in-adultery/" rel="nofollow noreferrer">held</a> in <em>Rothrock v. Cooke</em> (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 <a href="https://civil.sog.unc.edu/court-of-appeals-holds-that-heart-balm-claims-are-not-facially-unconstitutional/" rel="nofollow noreferrer">in an appeal to the North Carolina Court of Appeals in another similar case in 2017</a>).</p>
<p><strong>Other Countries</strong></p>
<p>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 <a href="https://scholarship.law.edu/cgi/viewcontent.cgi?article=3319&amp;context=lawreview" rel="nofollow noreferrer">suits seeking returns of engagement rings in a breach of promise to marry lawsuit</a> or similar claim).</p>
<p>I am unaware of whether or not most Western civil law countries have analogous forms of lawsuits. But, <a href="https://en.wikipedia.org/wiki/Heart_balm_(German_law)" rel="nofollow noreferrer">Germany abolished a heart balm type tort action</a> in 1998:</p>
<blockquote>
<p>The obsolete German legal concept Kranzgeld (literally &quot;wreath money&quot;)
is heart balm (see breach of promise) rewarded as compensation to a
woman of &quot;immaculate reputation&quot; 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
</blockquote>
