Heart Balm Actions

Question 1

What is the tort Alienation of Affections (AA)?

Answer 1

The tort of alienation of affections purports to compensate the plaintiff for the loss of consortium of the alienated spouse.

Question 2

What must the plaintiff establish in an AA claim or action?

Answer 2

The plaintiff must establish:

(1) that there was a marriage with love and affection;
(2) that the love and affection was alienated and destroyed; and
(3) that the defendant, with malice, caused the loss of love and affection. (causation)

The “malicious” part is presumed if there is proof of sexual intercourse; however, malice does not always mean sexual intercourse.

Note: The defendant act(s) giving rise to a cause of action for alienation of affection must occur pre-separation. If the spouses have entered into a separation agreement or have divorced, the action for alienation of affections will still lie for wrongs done before the agreement or divorce.

Question 3

Define NCGS § 52.13.

Answer 3

§ 52-13. Procedures in causes of action for alienation of affection and criminal conversation.

(a) No act of the defendant shall give rise to a cause of action for alienation of affection or criminal conversation that occurs after the plaintiff and the plaintiff’s spouse physically separate with the intent of either the plaintiff or plaintiff’s spouse that the physical separation remains permanent.
(b) An action for alienation of affection or criminal conversation shall not be commenced more than three years from the last act of the defendant giving rise to the cause of action.
(c) A person may commence a cause of action for alienation of affection or criminal conversation against a natural person only.

Question 4

What are the two parts in the third element (causation) of an AA action?

Answer 4

Malice and Proximate Cause.

For malice, the plaintiff must establish that the defendant intentionally engaged in conduct that had as a probable consequence the loss of affection for the spouse. the plaintiff need only prove that the defendant’s conduct was intentional and, as the North Carolina courts have expressed it, “unjustifiable.”
The law conclusively presumes malice from the evidence that the defendant engaged in sexual intercourse with the alienated spouse.
The defendant is not liable if all the defendant “did” was to become the object of the affections of the plaintiff’s spouse; rather, the defendant must have actively participated in causing the loss of affections. The defendant’s conduct need not be the only cause but must be an effective cause of the loss of affections

DEFENSE: The defendant may successfully defend by establishing that he or she did not know the person was married.

Question 5

What are some of the defenses against an action for AA?

Answer 5

• No genuine love and affection existed
• Unaware that the person was married
• Statute of limitations (3 years)

Question 6

What are the elements of Criminal Conversion (CC)?

Answer 6

1. Actual (legally valid) marriage between plaintiff and spouse
2. Sexual intercourse between spouse and a third party during the marriage

Question 7

What are the defenses against an action for Criminal Conversion (CC)?

Answer 7

1. Connivance, or that the plaintiff was already separated from their spouse when the sexual intercourse occurred.
2. Statute of limitations defense.

Question 8

What are the differences between AA and CC?

Answer 8

AA

Allows for recovery for the defendant’s wrongful interference with the spouse’s emotions.

Sexual intercourse is NOT a prerequisite, although it may be an element of proof and may aggravate damages.

CC

Proof of actual loss of affection or marital separation/dissolution is NOT required - only SEXUAL RELATIONSHIP.