by Last week, a North Carolina jury awarded a woman $9 million in an Alienation of Affections claim against a woman who had enticed her husband away. North Carolina is one of only 13 states that retain the Alienation of Affections claim. The vast majority of states have abrogated such claims. In my view, these courts and legislatures do not take marriage seriously. They illustrate the individualistic direction of the law.
States that have abrogated the Alienation of Affections claims show little sympathy for plaintiffs’ loss at the break-up of their marriage. But the jury in the North Carolina case concluded that its plaintiff’s damages were substantial. Divorce can be emotionally damaging for almost any person, but experience shows that this is especially so for the wife of a long-term marriage. The interest of many spouses in the preservation of their marriages is more important to them than their interests in money or bodily security, which courts take pains to protect. As many studies have shown, wives and children have fared the worst in our “no fault divorce” culture.
Alienation of affections claims were designed to protect vulnerable spouses and families. As William R. Corbett has observed:
“[T]hese torts are based on the presumption that marriages are delicate relationships, which often teeter in the balance. It is often said that marriage is hard work. That belief recognizes that spouses have to deal with many matters that are not always fun, including balancing budgets, making decisions about children, caring for aging parents and in-laws, and so forth. A third person, who offers the fun and excitement of sexual relations unencumbered by these other weighty matters, might be an attractive diversion, or more.” 33 ARIZ. ST. L.J., 985, 1019 (2001).
The hope is that the cause of action will make some prospective defendants honor the sanctity of marriage.
Among the justifications that courts have given for abrogation of the alienation of affections claim are “changed social concepts of family solidarity [and] increased freedom of association between each spouse and the outside world.” 792 S.W.2d 71, 75 (Tenn. Ct. App. 1989). The problem is that abrogation of the cause of action damages those who have relied on an older conception of family solidarity—the notion that marriage is “for better or worse, in sickness and health, til death do us part.”
In today’s throw-away society, marriage often seems to be little more than a temporary relationship which either party is free to terminate at will. This view ignores the fact that another party often has made a significant investment of time, money, and emotional energy in the enterprise; that still others (the children of the marriage) are dependent on the union for continued material and emotional support; and that strong family unions contribute to the strength of the community-at-large. The failure of so many courts and legislatures to treat the family more seriously is a sad reflection of the atomization of society. See my book Law and Community: The Case of Torts (2003) (with Robert Ackerman).
The older cases Alienation of Affections cases tended to be brought by husbands against men who had taken their wives; the more recent cases tend to be claims brought by traditional wives against women who have taken their husbands. I wonder if the trend away from the Alienation of Affections claims might be rooted in:
A. Men not taking the interests of women seriously.
B. Feminism not taking the interests of traditional wives seriously.
C. The notion, as one of my students expressed it, that “the defendant has the right to have sex with anyone she wants; she was not a party to the marriage contract.”
D. A reduced appreciation in Western culture of the importance of marriage.
E. All of the above.
“C. The notion, as one of my students expressed it, that ‘the defendant has the right to have sex with anyone she wants; she was not a party to the marriage contract.”
That simply makes me shudder.
I saw this case, too, and was pleased to learn of it. The tort seems to be addressing a real harm that the law is equipped to remedy. Are there any more such cases being litigated in North Carolina or elsewhere?