Heart Balm Actions: Does it protect the sanctity of marriage or is it destructive to family life?

I first learned of Heart Balm Actions while studying for the New York Bar exam. These antiquated laws, which are no longer valid in New York, date back to when a woman was considered property. There were five possible causes of action: (1) “breach of promise to marry,” a tort action for when an engagement was broken; (2) “seduction of an unmarried female,” an action belonging to an unmarried woman’s father against the seducer; (3) “criminal conversation,” a tort action in which the innocent spouse would sue the paramour for committing adultery with the other spouse; (4) “alienation of affections,” an action against a third-party interloper (sometimes a mother-in-law) who turns one spouse against the other spouse; and (5) “jactitation of marriage,” an action against someone who makes a widespread dissemination that the complainant is married to someone he or she is not married to.

While abolished in New York, there are still seven states that allow the suit of alienation of affection: Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota and Utah. There has been recent focus on the laws of alienation of affection and criminal conversation because of the publication of extramarital affairs of public figures, such as Tiger Woods. See Wayne Drash, Beware cheaters: Your lover’s spouse can sue you (2009), http://www.cnn.com/2009/LIVING/12/08/cheating.spouses.lawsuits/index.html. Proponents of this law say that the threat of such legal action helps protect the sanctity of marriage. However, does it? Even the use of the word “balm,” defined as “a soothing restorative agency” suggests a different notion. http://www.merriam-webster.com/dictionary/BALM. Heart Balm actions do not protect the sanctity of marriage and/or deter extramarital relationships; rather, they simply offer the jilted spouse with a vengeful tool.

The tort of alienation of affection originated in the Teutonic tribes. Bruce V. Nguyen, Hey, That’s My Wife! – The Tort of Alienation of Affection in Missouri, 68 Mo. L. Rev. 241, 243 (2003). In their culture, a wronged husband could kill his wife’s lover if he found the lover and his wife engaging in adulterous acts. Id. As time progressed, however, such extreme measures were no longer allowed. Id. Instead, the husband could extract a financial penalty from the lover, which would be used as a means to purchase a new spouse. Id. As successors to the Teutonic tradition, the Anglo-Saxons provided a cause of action for tortious interference with the marital relationship. Id. at 244. The basis was that the wife was considered to be the husband’s property, the loss of which permitted the husband to seek compensatory damages. Id. Eventually, English common law created what are now known as the modern-day torts of criminal conversation and alienation of affection.

Over the course of the second half of the twentieth century, however, most states have eliminated the tort of alienation of affection because the tort failed to preserve marriages and merely “invite abuse.” Id. at 248 (Wyman v. Wallace, 615 P.2d 452, 455 (Wash, 1980) ( holding that the tort failed to preserve marriages, the court system could not effectively police out-of-court settlements, the tort promoted blackmail, no standards for assessing damages existed, and successful prosecution of the suit amounted to little more than the sale of the spouse’s affections); see also Fundermann v. Mickelson, 304 N.W.2d 790, 791 (Iowa 1981) (stating that the tort failed to preserve the family unit and that no party could recover for the loss of affection from the other spouse)); Hoye v. Hoye, 824 S.W.2d 422, 427 (Ky.1992). Plaintiffs are often able to extract generous settlements by threatening to bring the defendant’s reputation into question. Nguyen, supra, at 248. Such settlements amount to legally sanctioned blackmail. See id.

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