Mcgregor

The practice of law is interesting, because there is sometimes a legal remedy for a moral wrong.

In this, the first of a two-part article, which looks at special claims that a married person may make against a third party, I will explore the right of a deserted wife to bring a claim for damages against her husband's mistress. This was, in fact, the subject of a recent Lifetime movie in which the deserted wife was awarded $1M in compensation for the "alienation of her husband's affections" by his mistress. I thought it was just a movie!

This area of law has an unfortunate background. Before 1882, no married woman had a right to bring a claim in court without joining her husband as a plaintiff. Therefore, if she suffered some wrong and her husband did not wish to lend his name to the action, she could not pursue her claim. By extension, she was her husband's property and any injury to her or action by a third party which deprived him of his right to enjoy 'his property' was actionable.

If, therefore, a married woman was seduced by a stranger or enticed to leave her husband, her husband could bring a claim against that stranger to recover damages in a common law action. The same was not true for the wife, and one can well imagine that no husband would allow his name to be added as the plaintiff to an action brought by his wife against his mistress.

The Married Women's Property Act 1882, levelled the playing field so that women acquired the right to bring actions in their own names; and this included actions for enticement, inducement or alienation of affection.

From the woman's perspective, these claims relate to her entitlement to enjoy the comfort, protection and maintenance provided by her husband. If another woman entices her husband from her, the wife is left without those benefits and is "entitled to claim damages for the wilful invasion of her rights".

This is not merely a historic right. It exists today and is still based on the common law. For example, in one case in North Carolina, a wife left her husband of 16 years for their children's athletic coach. The husband sued the coach and claimed that he had seduced his wife and wrecked his family's life. The husband was awarded damages in the amount of US$500,000.

These actions will not succeed if there is no proof that love and affection had existed between the husband and wife at the time the lover entered the picture. Moreover, the lover must have also known of the existence of the marriage, interacted with the spouse and caused the breakdown of the marriage. It is not certain whether there must be proof that sexual intercourse occurred.

What is certain is that the trial of these types of claims will delve into unpalatable details of a couple's private affairs; and many wonder whether the outcome is worth the public humiliation. There is even debate as to whether the right to bring these actions should not be abolished.

Until the law changes, perhaps the word of caution is that the next time you are tempted, you should think twice unless you are prepared to pay the price!