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By Lauren Taylor Arnette, Ward and Smith, P.A.
Editor’s Note: Lauren Taylor Arnette is a member of the Family Law and Litigation Practice Groups at Ward and Smith, P.A.
North Carolina is one of only eight states that still recognize claims for alienation of affections and criminal conversation. In fact, 45 states and the District of Columbia have abolished or severely limited the claims for alienation of affections, and 42 states and the District of Columbia have abolished or limited the claims for criminal conversation. The reasons for and against the preservation of these claims abound.
Alienation of affections and criminal conversation are commonly referred to as "heart balm" torts because of the loss for which they seek to provide recovery. The Random House Dictionary of the English Language defines "balm" as "anything that heals, soothes, or mitigates pain." These torts seek to soothe, heal, or mitigate the pain to the heart caused by an individual’s actions that affect another’s marriage.
Claims for alienation of affections and criminal conversation have their origins in the antiquated notion that a married woman is her husband’s personal property and that the husband is entitled to compensation for his loss of such property and the benefits stemming therefrom. It has been argued that a legal claim founded on a principle which no longer holds true should be abolished. On the other hand, proponents argue that these claims continue to preserve the sanctity of marriage, give the injured spouse a "civilized" forum in which to challenge the offending third party without use of physical force, and reflect this state’s public policy to protect marital rights.
Alienation of affections
The claim of alienation of affections can be traced to the English cause of action for abduction. Upon proving the cause of action for abduction, a husband could recover damages for the loss of the "society and services" of his wife. Later, English courts required that a wife be removed physically from her husband’s home in order for the husband to recover damages. Damages could be recovered from anyone who either intentionally removed the wife or "enticed" her to leave, resulting in a loss of "consortium," or marital companionship and support. Abduction, renamed as a claim for "enticement," was adopted in every state in the country except Louisiana, and was recognized in North Carolina in 1849. In turn, the claim for enticement evolved into the current claim of alienation of affections. Until the enactment of the Married Women’s Property Acts in the latter part of the nineteenth century, only husbands possessed the right to bring an action for alienation of affections. Since that time, courts have recognized that wives have the right to the same expectations of fidelity as husbands and have afforded wives the same right to sue for alienation of affections.
To establish a common law claim for alienation of affections, the jilted spouse must prove that:
(1) The plaintiff and the plaintiff’s spouse were happily married and that genuine love and affection existed between them;
(2) This love and affection were alienated and destroyed; and,
(3) The defendant’s wrongful and malicious acts produced and brought about the loss and alienation of the love and affection.
The claim for alienation of affections protects the actual love and affection between spouses and not the exclusive right to sex. Establishing that genuine love and affection existed between the spouses is of paramount import, but little evidence is needed to prove it. The plaintiff is not required to prove there was an untroubled, perfect marriage and can satisfy this element even though there is evidence of marital discord. In some cases, courts have found this evidentiary burden to be satisfied by the mere testimony of the plaintiff or of an interested witness that the marriage was a good one. Further, spouses do not have to be cohabiting at the time of the alleged misconduct to establish this element. Even where the spouses have entered into a separation agreement or have divorced, a claim may be made for acts committed before the separation or divorce. Contrary to the belief of many, a claim for alienation of affections, unlike a claim for criminal conversation, does not require proof of sexual acts between the spouse and the defendant.
On the other hand, the quaintly and genteelly named claim for "criminal conversation" is, in fact, a civil claim for adultery. In early common law, this claim was known as "seduction" and required the plaintiff to prove that sexual relations had occurred between the plaintiff’s spouse and the defendant.
At common law, the only recognized claim for criminal conversation was by a husband against his wife’s lover. As with the claim for alienation of affections, the passage of the Married Women’s Property Acts also was instrumental in authorizing a wife to make a claim for criminal conversation.
To establish a claim for criminal conversation, a plaintiff must prove only that:
(1) The spouses were legally married; and,
(2) Sexual intercourse occurred between the defendant and the plaintiff’s spouse during the marriage.
Criminal conversation is a strict liability claim which does not require a showing of malice. The plaintiff can prevail even if the defendant was unaware that the plaintiff’s spouse was married at the time of the sexual encounter. Furthermore, the plaintiff need not establish that there was love and affection in the marriage or that the sexual intercourse had any effect on the marriage.
The only defenses to a claim for criminal conversation are the expiration of the three-year statute of limitations or the plaintiff’s consent, encouragement, or approval of the conduct amounting to connivance.
Both alienation of affections and criminal conversation allow for recovery of monetary damages to compensate for the emotional distress related to the loss of affections, services in the home, support, separation from the spouse, and divorce. The plaintiff also may recover for humiliation and mental anguish.
Call to action
Opposition to these claims is widespread within North Carolina, and there have been several attempts to abolish them. In a 1984 decision, the North Carolina Court of Appeals abolished both alienation of affections and criminal conversation, but the North Carolina Supreme Court reversed the decision and reinstated them. The North Carolina Supreme Court recently reaffirmed that claims for alienation of affections still are recognized in North Carolina.
Earlier this year, the North Carolina General Assembly responded to the calls of critics and passed legislation limiting both claims. As of October 1, 2009, claims for alienation of affections and criminal conversation can be based only on acts which occur prior to the date of the spouses’ separation. Further, a civil action asserting either claim must be commenced within three years after the last act giving rise to the claim.
Despite efforts to abolish the legal claims of alienation of affections and criminal conversation, they are still available in North Carolina. While recent legislation has limited the parameters of the acts giving rise to these claims, it does very little to quiet the calls to abolish them completely.
© 2009, Ward and Smith, P.A.
Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Lauren Taylor Arnette practices in the Family Law and Litigation Practice Groups, where she represents clients in a variety of domestic matters. Comments or questions may be sent to firstname.lastname@example.org.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.