Heard it in a love song: The repeal of South Dakota’s "alienation of affection" law is overdue.
Marriage, of course, is a legal contract. It involves kids and properties — things hard to divide. Love is not a contract. People intoxicated by alcohol cannot enter into binding contracts. Love obviously belongs in a different category.
In reaffirming a state law from the Victorian era last week, the South Dakota Supreme Court said only the Legislature should have final say over its future. Unlike in most states, previous attempts at repeal in South Dakota have run afoul of the state’s religious impulse to protect marriage. It’s a laudable goal, but the law neither fits the times nor the problem. The law applies in few cases of adultery, so encouraging fidelity really isn’t its purpose.
Three elements must be proven in an alienation of affections case: The marriage contained a degree of love or affection prior to the extramarital affair. The affair destroyed that love or affection. And the third party maliciously caused the loss of affection.
So blame gets placed in hindsight based on speculation about feelings at a time of revisionist history. It’s way too easy for a spouse to claim they were duped. They were not responsible. What else would they say? We’ve seen this soap opera.
Allowing a spouse to blame a third party for stealing love removes the responsibility from where it belongs. As they say in country western bars: It takes two to tango.
Maybe once upon a time, naïve spouses were the unwitting victims of a malicious Don Juan or Scarlett O’Hara. Today’s brides and grooms come to marriage older, more experienced, and knowing the odds of permanence are no better than a coin flip. Even so, we vow to forsake all others.
The real pretense underlying the law is that love, like a contract, would remain intact without interference. Love, to the dismay of many young and inexperienced parties, carries natural entropy — it has a predilection to fall apart unless constantly maintained. Ask any 50-year anniversary expert — marriage takes work, lots of it.
In practical terms, the law is a boon for divorce lawyers practicing among the well-heeled. For the jilted, it is a cudgel to wield. For the guilty spouse, it is a way to avoid responsibility.
Don’t the courts have better things to pursue? While judges come to contractual issues with great expertise, most have less experience in issues of love than the average hairdresser. How can anyone pretend to place a monetary value on love?
Some in this state undoubtedly would still like to view the tort as a necessary defense of traditional marriage values, but it truly no longer fits the times.
In 1981, when the South Dakota Supreme Court affirmed a ruling awarding $50,000 to a jilted wife, Justice Frank Henderson wrote, “Because we happen to be living in a period of loose morals and frequent extra-marital involvements is no reason for a court to put its stamp of approval on this conduct; and I feel certain that a case will arise in the future where some party has so flagrantly broken up a stable marriage that we would rue the day that an alienation suit was not available to the injured party.”
Why? The devil made me do it doesn’t work as a legal defense anywhere else.