What is Alienation of Affections?
Alienation of affections is a tort comprised of wrongful acts, which deprive a married person of the affections of his or her spouse. To be successful on a claim for alienation of affections, the plaintiff must prove (1) that the spouses were happily married and genuine love and affection existed between them, (2) the love and affection was alienated and destroyed, and (3) the defendant caused the destruction of that marital love and affection. Ridenhour v. Miller, 225 N.C. 543, 35 S.E.2d 611 (1945).
The theory behind alienation of affections evolved from a husband’s common-law right to recover from someone who intentionally ‘enticed’ his wife to leave the marital home, with the result being that he lost his wife’s society and services. Currently, an action for alienation of affections is available to either a husband or wife and concerns a wrongful act that deprives a married person of the affection, love, society, companionship, and comfort of the spouse. The North Carolina Supreme Court has described alienation of affections as “a fundamental common law right.” Bishop v. Glazener, 245 N.C. 592, 595, 96 S.E.2d 870, 873 (1957).
A similar claim that frequently is made with alienation of affections is criminal conversation. Criminal conversation is an action that arises when someone has sexual intercourse with your spouse. The elements of criminal conversation are the actual marriage between the spouses and sexual intercourse between defendant and the plaintiff’s spouse during the marriage. The tort of criminal conversation is based on violation of “the fundamental right to exclusive sexual intercourse between spouses.” Scott v. Kiker, N.C. App. 458, 297 S.E.2d 142 (1982).
Although the North Carolina Court of Appeals briefly abolished alienation of affections and criminal conversation in Cannon v. Miller, that lasted only two months and twenty-three days when the North Carolina Supreme Court overturned that ruling and held that alienation of affections and criminal conversation were constitutional. Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780 (1984). See also Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985).
Subsequently, the North Carolina Court of Appeals has refused on several occasions invitations to abrogate criminal conversation a second time. Nunn v. Allen, 154 N.C. App. 523, 574 S.E.2d 35 (2002) (defendant argued criminal conversation was “archaic, antiquated, and offensive to the concept of feminine equality” and asked the court to abolish it; Court of Appeals has no authority to overrule decisions of North Carolina Supreme Court); Hutelmyer v. Cox, 133 N.C. App. 364, 514 S.E.2d 554 (1999) (defendant argued Supreme Court’s refusal to abolish criminal conversation should be reconsidered, but while defendant’s arguments were “skillfully presented,” it was not for Court of Appeals to overrule or ignore clearly written decisions of Supreme Court). It is well settled case law that the torts of alienation of affections and criminal conversation are constitutional according to the North Carolina Supreme Court.
If you need to speak with an experienced family law attorney in Huntersville, NC regarding alienation of affections or criminal conversation, click here to contact Adkins Law, PLLC. Adkins Law is located in Huntersville, NC and can help you discuss and evaluate any claim or issue involving alienation of affections and criminal conversation.