Tort of Alienation of Affection (Aoa): A Critique
- INTRODUCTION
The tort of alienation of affection is a legal action that allows a spouse to sue a third party for intentionally interfering with their marital relationship. It is rooted in old common law, dating back to the 18th and 19th centuries. While its aim was to protect the sanctity of marriage, the tort has become increasingly controversial in modern times. Critics argue that alienation of affection is outdated, patriarchal, and often misused. This article critiques the continued use of alienation of affection, examining its historical foundations, current application, and the case for reform or abolition. - HISTORICAL ORIGINS OF ALIENATION OF AFFECTION
Alienation of affection arose from a time when women were considered the property of their husbands. Under coverture laws, wives had no legal identity apart from their husbands. The tort originally gave husbands the right to sue men who were thought to have “stolen” their wives’ affections. Courts saw marriage as a contract, and the tort provided a remedy when that contract was damaged by outside interference.
While courts eventually allowed wives to bring AoA suits, the tort’s roots in property and gender inequality remain troubling. Its original purpose was not truly to protect emotional bonds, but to compensate for a perceived loss of control and service. - ELEMENTS OF THE TORT
To bring a successful claim for alienation of affection, the plaintiff must typically prove:- A genuine, loving marriage existed.
- The love and affection were alienated and destroyed.
- The defendant’s wrongful and malicious conduct caused the alienation.
Importantly, sexual conduct is not required—though in most cases, adultery is involved. Defendants are often accused lovers, but may also include friends, counsellors, or even family members who allegedly influenced a spouse to leave.
- Current Status in the United States
Alienation of affection has been abolished in most U.S. jurisdictions. As of 2025, only a few states—Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah—still recognize the tort. In these states, alienation of affection remains a contentious and emotional issue. For example, North Carolina has seen high-profile cases where plaintiffs won damages in the hundreds of thousands, or even millions, for loss of affection.
Despite these awards, most states have rejected the tort for being inconsistent with modern values. In Kline v. Ansell, the Maryland Court of Appeals held that alienation of affection claims are “archaic remnants of a bygone era.” States like Colorado and Indiana have struck down alienation of affection as unconstitutional, finding that it invades personal privacy and autonomy. - Criticism of alienation of affection
Several major criticisms have been raised against alienation of affection:- VIOLATES PERSONAL AUTONOMY
Modern marriage is based on mutual respect and personal freedom. alienation of affection implies that affection can be stolen or transferred like property. This undermines the agency of the spouse who chose to leave the relationship. Courts should not police private matters of love and emotional attachment. - ENCOURAGES VINDICTIVE LITIGATION
Rather than promoting reconciliation or justice, alienation of affection lawsuits often serves to punish third parties out of revenge. These lawsuits can drag private affairs into public courtrooms, damaging reputations and creating emotional trauma for all involved. - INCONSISTENT WITH NO-FAULT DIVORCE
The rise of no-fault divorce suggests a legal shift away from assigning blame for marital breakdowns. Alienation of affection contradicts this approach by attributing fault to outsiders, even when the marriage was already failing. This can lead to unjust outcomes and double standards.
- VIOLATES PERSONAL AUTONOMY
- POLICY CONSIDERATIONS AND REFORM
Supporters of alienation of affection argue that it deters infidelity and protects the institution of marriage. However, there is little evidence that alienation of affection suits prevent adultery or save marriages. Instead, they often lead to greater emotional harm and legal costs.
Some legal scholars propose reforming rather than abolishing the tort—such as requiring clearer proof of malicious intent or limiting damages. Others advocate for outright repeal, calling alienation of affection an unnecessary and harmful legal relic. - CONCLUSION
The tort of alienation of affection is a controversial holdover from the past. While it once served a legal purpose, today it often clashes with values of privacy, gender equality, and personal freedom. Most jurisdictions have moved beyond it, recognizing that love cannot be legislated and that personal choices in marriage should not be subject to third-party liability. It is time for the remaining states to reconsider whether alienation of affection still belongs in modern tort law.This article has been researched and written by Advocate Aarun Chanda, practicing divorce law in Mumbai and Pune. This article is intended solely for academic purposes and should not be construed as legal advice. Readers are encouraged to consult a qualified lawyer/advocate specializing in divorce cases for professional legal guidance.
Seeking expert legal guidance?- Contact The Divorce Law Firm today.
