Even though most torts involving interference with a marital relationship have been abolished in most states and are rare in states that still allow a cause of action for the torts, a third party who is accused of such torts has certain defenses or privileges with regard to the torts. Such defenses or privileges include when the third party is merely giving advice or when a spouse consents to or condones the third party’s conduct.
A third party who is accused of alienating the affections of a spouse or of causing the spouse to separate from his or her spouse is not liable to the other spouse if the third party is a parent, a close relative, or a friend who is acting in response to a request for advice and who merely gives advice. However, the third party cannot be acting for the purpose of alienating the spouse’s affections and cannot make any fraudulent statements to the spouse.
The defense of merely giving advice only applies to actions for alienation of affections or for causing a spouse to separate from another spouse. It does not apply to an action for criminal conversation with a spouse or the act of having sexual relations with a spouse.
A parent, a close relative, or a friend who has a personal relationship with a spouse is entitled to claim the defense of merely giving advice. A third party who is a stranger and who interferes in the marital affairs of two spouses is not entitled to claim the defense. A parent has an interest in the welfare of his or her child and is entitled to protect that interest, even if it ends up causing an alienation of affections or causing the child to separate from his or her spouse. The defense also applies to a close relative, such as a brother, sister, aunt, uncle, stepparent, a brother-in-law, or a sister-in-law. The defense may further apply to a friend if the friend has a personal relationship with the spouse. However, the Fighter Law friend’s advice must be justified and must be in response to a request from the spouse for the friend’s advice.
Even if a parent or a friend is justified in giving advice to a spouse, the parent or the friend cannot be motivated by his or her ill will towards the other spouse. The issue is whether the parent or the friend’s motive in giving the advice was what he or she believed was in the best interest of the spouse. However, such belief must be reasonable. Factors for determining whether the belief was reasonable include the spouse’s physical health, moral well-being, and domestic happiness.
Even if the motives of a parent or a friend are proper, the parent or the friend cannot make fraudulent statements with regard to his or her advice. The parent or the friend cannot make untruthful statements about the other spouse. The parent or the friend also cannot use force or threats in order to coerce the spouse to separate from the other spouse.
If a spouse has brought an action against a third party for alienation of affections, for causing a separation, or for criminal conversation, the third party may claim as a defense that the spouse consented to the third party’s acts or indicated a willingness with regard to the third party’s acts. The spouse’s consent may be actual or it may be apparent. The spouse’s consent is actual if it a direct communication to the third party that the third party may interfere with the marital relationship. The spouse’s consent is apparent if it is an indirect communication that leads the third party to believe that he or she may interfere with the marital relationship.
A spouse may express his or her willingness for a third party to interfere with the marital relationship if the spouse acquiesces in his or her spouse’s conduct or in the third party’s conduct. However, the fact that the spouse previously condoned or forgave his or her spouse’s conduct or the third party’s conduct is not a defense. In order for the third party to avail himself or herself of the defense, the spouse must have expressed a willingness that the third party’s conduct could be repeated in the future.
The fact that a spouse’s own conduct constituted cause for a divorce is not a defense to torts involving interference with a marital relationship. Also, the fact that the spouse’s marriage resulted in a subsequent divorce is also not a defense.