ALIENATION OF AFFECTION: A DISH BEST SERVED COLD

February 12, 2013 § 3 Comments

Alienation of affection survives the Mississippi legislature yet again, per Randy Wallace.

Here’s Philip Thomas’s take.

In the 21st century, what is the justification for continuing this cause of action in effect? Don’t the equitable distribution principles take care of this? Doesn’t the tort simply add a distorting feature to the equitable distribution arrangement?

Our family law has been evolving away from the nineteenth-century retribution-based model to today’s equitable relief, based on valuations and equities. This tort just does not fit.

Maybe some day all of our marital-dissolution law, including associated tort law, will move into the 21st century (hopefully before the 22nd century).

Tagged: ,

§ 3 Responses to ALIENATION OF AFFECTION: A DISH BEST SERVED COLD

  • R. E. Mongue says:

    While it would be nice if the cause of action did indeed enforce the sanctity of marriage, moral values, etc., as Justice McRae noted in his dissent in Hill v Bland, “History, however, has taught that this is not so. Suits for alienation of affection, criminal conversation and the
    like ‘have afforded a fertile field for blackmail and extortion by means
    of manufacturing suits in which the threat of publicity is used to force a settlement.’ Prosser and Keeton, §124 at 929.” Hardly a reinforcement of moral values!

    On the other hand the continued existence of the tort in Mississippi provides an opportunity to reinforce for students the need to deal with the law that is, rather than the law that theory says should be – a hard concept for many students to digest.

    • What you stated and what I stated as the argument for keeping the cause of action (I am not advocating either; simply stating the positions) were discussed in the committee meeting when the matter was tabled. I was at the Capitol that day, and happened to be in the committee room when it happened. Interesting to say the least.

  • I can see both sides of the argument. It is an antiquated rule for certain. But it can also be said to enforce the sanctity of marriage, moral values, etc. by placing one who interferes with the marital covenant at risk for liability. Much like tortious interference with a contract only with a “family values” twist.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading ALIENATION OF AFFECTION: A DISH BEST SERVED COLD at The Better Chancery Practice Blog.

meta

%d bloggers like this: