CASE LAW UPDATE: Alienation of Affection & Criminal Conversation (Heart Balm Actions)

Before I get into the new updated case law regarding Heart Balm Actions I want to actually define Alienation of Affection and Criminal Conversation first.

Alienation of Affection

Alienation of affection along with criminal conversation make up the "Heart Balm" actions and is actually a common law tort.  Alienation of affection occurs when there is genuine love and affection existing between a married couple at the time of their marriage and the love and affection is destroyed by a third party's malicious actions.  

The lawsuit is actually filed against the third party that interferes in the marriage and not the cheating spouse.  In fact, there does not actually have to be any showing of a sexual affair for an alienation of affection action to be valid. There just has to be a showing that a third party acted maliciously in extinguishing the genuine love and affection that existed between spouses. However, if there is a showing of sexual misconduct, then malice will be presumed.

The malicious interference has to occur during the course of the marriage and not solely after the date of separation.

Criminal Conversation

Criminal conversation makes up the other half of the "Heart Balm" actions and is also a common law tort.  There are two elements to this claim.  First, there must be an actual marriage between the spouse and there must be a showing of sexual intercourse between a spouse and a third party during the marriage.  That's it.  

Do I actually have to have some physical proof of the act?  Not necessarily, you can prove this by what is called "circumstantial evidence".  Think hotel/motel room stays with the third party and spouse and/or frequent phone calls and text messages between the third party and spouse.

Are There any Defenses to these Actions?

Of course.  In alienation of affection, a third party can argue that they did not know the spouse was married, that one spouse tricked the other into having an affair ("connivance"), consent by the non-cheating spouse or, frankly, that their was no love and affection existing in the marriage prior to the malicious act(s) by the third party.  Of course there is also the statute of limitations defense, which is three years by the way, and that the malicious act(s) occurred after the date of separation which is found under NCGS 52-13.

Criminal conversation also has a three year statute of limitations defense as well as connivance and separation prior to sexual conduct; however, ignorance of the marriage is actually not going to be a defense.  So the old, "I didn't know he/she was married" is not going to work. Sounds harsh, especially if someone is hiding their marital status, but it is what it is.  Consent by the other spouse is not a valid defense to a criminal conversation action either.


North Carolina is one of the few states in the Union that still have causes of action for alienation of affection and criminal conversation.  The prevailing sentiment is that the government should not have the authority to interfere in citizens' day to day private lives which is primarily why these Heart Balm actions have come under fire a lot in North Carolina.

The most recent case, Malacek v. Williams, challenged alienation of affection and criminal conversation on First Amendment right to freedom of association and expression as well as Fourteenth Amendment substantive due process grounds.  

Although Dr. Williams', the appealing party, Fourteenth Amendment argument was upheld in regards to his right to “engag[e] in sexual activity free of governmental intrusion or regulation", the NC Appeals Court ultimately determined that this argument is only valid “absent injury to a person or abuse of an institution the law protects.”  Marriage, apparently, is an institution that the law protects and breaking the pledge to be faithful is an injury to the other partner in the marriage.  The Court based this ruling on the U.S. Supreme Court case of Lawrence v. Texas.  

The Court in Malacek v. Williams also disagreed with Dr. Williams' First Amendment arguments which stated that his sexual conduct with a married person was protected as a freedom of expression and freedom of association.  The Court based it's decision on the fact that there are many ways to associate with a married person without incurring tort liability and that the government's interest in regulating Dr. Williams' "expression" was not based on the act itself (content), but actually the harm that stemmed from the act itself.