Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may save you half your life savings after a Valentine’s Day gone bad. This week’s word is the latter.

Written by: Darci G. Van Duzer

We all know how romantic movies end-the happy couple lives together in wedded bliss to the end of their days. However, contrary to what Hollywood might want us to think, legal marriage in the United States has been viewed as a contractual secular agreement rather than a fairy tale ending. Though religion has played a fundamentally important role in the evolution of legal theories surrounding marital rights, the contract itself remains concerned with the protection of property. In the context of marriage and family these are sometimes referred to as relational rights. Today there exist three main types of interference with relational interests: Abduction, Criminal Conversation and Alienation of Affections. These concepts evolved in tort law to protect the husband’s interests in what were viewed as the “services” of his wife and children, otherwise known as his “valuable superior servants.” (Where are those romantic sighs now?)

The earliest form of abduction^[1] or harboring of the wife was known in England as the “writ of ravishment,” and true to its name, involved the forcible abduction or harboring of another’s wife.^[2] Though legions of romance novel fans may swoon at the name, the rather unromantic harm at issue was the loss to the husband of his wife’s services. This concept eventually expanded to include intangibles such as affection and companionship, and later became known as consortium, or the “bundle of legal rights to … services, society and sexual intercourse…”^[3] (Loss of consortium remains an important issue in Tort law.)

A suit for alienation of affections (which remains possible in only seven states, but has been updated to be pursuable by women as well as men) alleges that a third party intentionally and even maliciously alienated the affections of the spouse from the plaintiff. This could be–but is not necessarily–through sexual relations. It is possible for the suit to be brought against a parent, in-law or friend as long as the third party intentionally interfered in a legitimate and genuine marriage thereby “stole the affections” of the plaintiff’s spouse. This suit often goes hand-in-hand with that of criminal conversation, which is ironically only alleged where actual sexual relations or adultery occurred.^[4] Most states have done away with the alienation cause of action due to its ‘outdated perceptions’ of woman as property and the surprisingly belated realization that allowing revenge suits does little to preserve the sanctity of marriage.^[5]

[1] Dan B. Dobbs & Paul T. Hayden, Torts and Compensation, 1012 (5 ed. 2005).

[2] William L. Prosser, Law of Torts, 896 (3 ed. 1964).

[3] Id. at 897.

[4] Prosser, at 896-98, Dobbs & Hayden, at 1012.

[5] For an interesting discussion of opposing viewpoints on continuing the cause of action see http://www.carolinajournal.com/exclusives/display_exclusive.html?id=3472