The Abolition of “Heart Balm” Torts in Illinois
Posted on October 23, 2017 in Family Law
In the late 19th century, U.S. states began to see a series of causes of action referred to as “heart balm torts.” These torts, such as seduction and alienation of affection, hinged around the idea that one spouse could hold the other spouse’s lover liable for the breakup of their marriage. Nowadays, such causes of action have been abolished in most states, as they have been in Illinois since the beginning of 2016.
Definitions and History
Heart balm torts originated in the 19th century in the United States. While they began to fall out of favor as states passed their respective Married Women’s Property Acts, heart balm torts came about due to the general belief that a wife was her husband’s property. Thus—as was the belief—he alone enjoyed the exclusive right to her company and to sexual congress within the confines of marriage. Illinois passed its version of a heart balm act into law in 1901, somewhat later than many other states.
There were historically four distinct heart balm torts: alienation of affection, seduction, criminal conversation, and breach of promise or breach of marriage promise. Most such cases were intended to be directed not at the cheating spouse, but at the third party (a lover, usually). All four heart balm torts operated on the principles of negligence law, in that there were four distinct parts that had to be proved by the petitioning party. If it could be shown that a spouse’s duty of good faith was breached, and that the spouse and their lover’s actions were the direct cause, the aggrieved spouse could then collect damages, as well as initiate a divorce.
Abolition in 2016
In 2015, Illinois lawmakers passed sweeping changes to family law in the areas of divorce and child custody. However, a less-publicized provision in the law abolished heart balm torts in their entirety. One might wonder why it would be necessary, given that the torts originate from a time when societal attitudes toward women were utterly remote from what they are today.
The answer is that while the causes of action are outdated and misogynistic by today’s standards, a law remains a law until it is repealed or struck down. Keeping laws on the proverbial books when they are such a cultural mismatch with today’s society is a recipe for problems and abuse. While adultery is still frowned upon today—and, technically, a criminal offense in Illinois—it is no longer considered the mortal sin it once was for many people. Women also boast far greater rights and autonomy than were the norm at the turn of the 20th century. To keep this law on the books opens many possibilities for abuse, including possible extortion or slander.
Seek Experienced Assistance
Divorce and family law can be complex for the average person to navigate alone. Contact an experienced Geneva family law attorney to discuss your situation and to explore your options. Call 630-232-9700 for a confidential consultation at The Law Offices of Douglas B. Warlick & Associates today.
Sources:
https://www.isba.org/ibj/2015/11/newandimprovedillinoismarriageanddi
http://www.ilga.gov/legislation/publicacts/99/PDF/099-0090.pdf
