Alienation of affections is a common law tort, abolished in many jurisdictions. Where it still exists, an action is brought by a spouse against a third party alleged to be responsible for damaging the marriage, most often resulting in divorce. The defendant in an alienation of affections suit is typically an adulterous spouse's lover, although family members, counselors, and therapists or clergy members who have advised a spouse to seek divorce have also been sued for alienation of affections.
The tort of alienation of affections often overlaps with another "heart balm" tort: criminal conversation. Alienation of affections has most in common with the tort of tortious interference, where a third party can be held liable for interfering with the contractual relationship between two parties.
Legal requirements
An action for alienation of affection does not require proof of extramarital sex. An alienation claim is difficult to establish because it comprises several elements and there are several defenses.
To succeed on an alienation claim, the plaintiff has to show the following elements:
the marriage entailed love between the spouses in some degree; the spousal love was alienated; the defendant's malicious conduct contributed to or caused the loss of affection.
It is not necessary to show that the defendant set out to destroy the marital relationship, but only that he or she intentionally engaged in acts which would foreseeably impact the marriage.
Thus, the defendant has a defense against an alienation claim where it can be shown that he or she did not know that the object of his or her affections was in fact married. It is not a defense that the guilty spouse consented to the defendant's conduct, but it might be a defense that the defendant was not the active and aggressive seducer.
If the defendant's conduct was somehow inadvertent, the plaintiff would be unable to show intentional or malicious action. But prior marital problems do not establish a defense unless such unhappiness had reached a level of negating love between the spouses.
Australia
Alienation of affection actions in Australia stopped being good law since 1975, with the passing of the Family Law Act 1975. In the new system, outlined by the statute, there exists a fault-less ground of divorce, and that is irretrievable breakdown of a marriage, which is evidenced by 12 months of separation. Spousal behaviour though, can be a consideration a court may take into account during a property settlement.
Canada
The Supreme Court of Canada held that alienation of affection and the related tort cause of action for "criminal conversation" was not available as a cause of action in the year 1962 in the case of Kungl v. Schiefer, S.C.R. 443. The basis for the claim by the party suing in an Ontario case had been that Canada incorporated by reference the law of England as of the year 1792, but the Supreme Court of Canada held that England did not recognize that tort in the year 1792, so it was not a part of the law of Canada.
United States
, alienation of affections was recognized in six United States jurisdictions: Hawaii, North Carolina, Mississippi, New Mexico, South Dakota, and Utah. The U.S. Supreme Court has declined to consider the constitutionality of such torts by writ of certiorari, notwithstanding academic commentary suggesting that these torts are unconstitutional under the United States Constitution and relevant modern precedents decided based upon it, including Obergefell v. Hodges, that struck down laws prohibiting same sex marriage in the United States. The U.S. Supreme Court has addressed the tort in several cases that did not question its constitutionality, including U.S. v. Kaiser, 363 U.S. 299, 310 (1960) (dissenting opinion) (tax treatment of damages awards); Lykes v. U.S., 343 U.S. 118, 126 (1952) (tax deductions for litigation costs); Sherrer v. Sherrer, 334 U.S. 343, 373 (1948) (dissenting opinion) (full faith and credit afforded to divorce judgments); Shepard v. United States, 290 U.S. 96, 105 (1933) (admissibility of evidence); Tinker v. Colwell, 193 U.S. 473, 474 (1904) (availability of discharge of damages awards in bankruptcy); Waldron v. Waldron, 156 U.S. 361, 362–64 (1895) (preservation of objections to evidence when transcripts from a related proceeding are introduced). The U.S. Supreme Court has never granted certiorari on the constitutionality of the tort.
The tort of alienation of affection was inherited as part of the common law. The law was codified in some states, the first one being New York with legislation in 1864, and similar legislation existed in many U.S. states in the late 19th and early 20th centuries.