Jun 1, 2014

Antique Matrimonial Torts Alive and Well in North Carolina

Kungl v. Schiefer, [1962] SCR 443
I get a fair amount of spam posted as comments to my family law blog, which is why I screen for comments. Some people, you see, think that the search engine ranking of their website will go up the more links to their website appear in other websites, and so they troll the web looking for places to leave comments, comments that are just a vehicle for a link to their website.

An unusual comment caught my eye today, posted by a bogus Google+ user on behalf of Diener Law of North Carolina:

In the event that you are considering a separation with your accomplice, your first step will be to contract a family law lawyer to help you through the procedure

Apart from the humour of "separation with your accomplice," the link the spammer was trying to promote was to "stolenspouse.com" — and that's what got my attention.

As it turns out, North Carolina has kept on its books a couple of matrimonial torts from the antique common law, the torts of alienation of affection and criminal conversation, and Diener Law, which does the usual civil, personal injury and family law litigation, has made a specialty of prosecuting and defending these charming torts. stolenspouse.com is owned by Diener.

A "tort" is doing something that causes harm to someone else, which gives that person a right to sue you. Battery, hitting someone, is a tort. So is falsely imprisoning someone, slandering someone or running into someone with your car, or digging a hole in your front lawn that someone falls into.

A "matrimonial tort" is a tort that causes harm to someone by interfering with his or her marriage or right to be married. These torts are so delightfully old-fashioned, and misogynist, that most industrialized nations kicked them to the curb sometime in the 1960s and 1970s. Needless to say, I was tickled that a few of these yet survive in North America. Here are a few of my favourites from the good old days:
· A suit could be brought for jactitation of marriage, the false boasting of married status, which could result in a decree in the nature of an injunction restraining the respondent from making any further claim of marriage to the applicant.
· An engaged person could sue for breach of promise to marry, which might lead to an award of damages in contract.
· A husband could sue a third party for the ravishment of his wife, which could result in damages against a respondent who had taken her away thereafter.
· A husband could sue a third party for enticing and harbouring his wife.
· A suit could be brought for loss of consortium where the conduct of a third party, either by contract or by tort, caused the husband to lose the companionship and sexual services of his wife.

And this is one of the reasons why I love family law.

The tort of "alienation of affection," which Diener handles, is a species of loss of consortium. The case of Kungl v Schiefer from 1962 was one of the last such cases to be heard in Canada, and the husband's sued his wife's lover for alienating her affections from him, "thereby destroying the plaintiff’s home and marriage and causing the plaintiff to lose the enjoyment of the society, affection, comfort and services of his said wife." The claim resulted in an award of $10,000 at trial, on the basis that:
"The wife, while living under her husband’s roof, had entirely ceased to discharge any wifely function. She slept in her own room, locking the door. She refused to speak to her husband; and he was fully deprived of her consortium as if she lived in a separate building,"

however the case was ultimately thrown out by the Supreme Court of Canada. Here is Diener Law's charming, oddly pastoral description of the tort:

"North Carolina is one of a handful of states that recognize a 'heart balm' tort know as alienation of affection. It is called a 'heart balm' tort because its goal is to provide money damages for emotional harm. The North Carolina Supreme Court has gone so far as to recognize this cause of action for damages against one who wrongfully and maliciously alienates the affections of a spouse as a 'fundamental common law right'."
A suit could be brought against a third party who had intercourse with a spouse under the tort of "criminal conversation," Diener's other speciality, the tort of "debauching or seducing of a wife or husband," which was avaiable whether the spouse had consented to the debauchery or not. The Ontario Superior Court, in the 1921 decision of Maguire v Maguire, described this tort thusly:
"[T]he gist of the action of criminal conversation is not merely the loss of the society, comfort and assistance of the wife, but that it includes also the wrong done by the intolerable insult to which he has be subjected by the corruption of his wife."
Here's how Diener describes criminal conversation:
"Essentially, criminal conversation is adultery. Like alienation of affection, criminal conversation is referred to as a 'heart balm action' because it seeks to award money damages for emotion harm. This tort is based on the common law 'fundamental right to exclusive sexual intercourse between spouses'."
Imagine that. I suppose the real lesson here is that you'd better not have sex with someone else's spouse in North Carolina.
Sadly, suits for criminal conversation were forbidden by the British Columbia Family Relations Act of 1978 which, in its 1996 version, said at s. 123:
(1) An action must not be maintained for restitution of conjugal rights, loss of consortium, criminal conversation or jactitation of marriage.
(2) An action must not be maintained for
(a) enticement of a spouse,
(b) harbouring of a spouse, or
(c) breach of promise of marriage.
I'd love to say that the loss of these quaintly sexist, and ever so conservative, torts is a bad thing, however the present no-fault system really works a lot better, costs people a lot less money and results in a lot less enmity and rancour. You've come a long way since the middle ages, baby.