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Make the Mistress Pay?

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I recently came across a story that was variously reported in America in March of this year that a wife made her husband’s mistress pay for ruining her marriage, literally.  She successfully sued the mistress and was awarded $9 million.

The story concerned Cynthia Shackleford who was able to use an ancient North Carolina statute of “alienation of affection” and issued proceedings against Ms Lundquist, and won.  Mrs Shackleford was awarded the equivalent of £3.3million in compensatory damages and $4million in punitive damages for breaking up the Shacklefords 33 year marriage.

 

Although Mr Shackleford claimed that his marriage was troubled before he met his mistress, this is a rare case of the paramour rather than the spouse not only being brought in to the legal proceedings between husband and wife but also being forced to pay the aggrieved spouse.   “Alienation of affection” lawsuits are only allowed in a handful of USA states and, thankfully, do not feature in the laws of England and Wales.

 

Indeed, when clients seek advice in relation to marriages where adultery is a feature, I discourage bringing the mistress or boyfriend into the proceedings.  Where it is appropriate to issue divorce proceedings on the basis of adultery and even if the third party is known to the spouse, it does not achieve a great deal for that person to be named in the proceedings.   Aside from the minor sense of satisfaction that the aggrieved spouse might have at “naming and shaming” the third party, it is often a fleeting sense of justice that does not, in the long term, serve to right any wrongs that are perceived to have been done.

 

If a co-respondent is named in adultery proceedings, the papers are served upon them.  They are required complete a form, an acknowledgement of service, admitting the adultery and return it to the court within a set time.   The spouse who has commenced the proceedings, the petitioner, cannot proceed with the divorce unless this form has been received from the named party and the adultery has been admitted.   There is a real risk therefore that, if the 3rd party fails\refuses to return the document or fail\refuses to admit the adultery, the Petitioner is then put to further expense in having to either prove the adultery and personally serve the co-respondent.  Whilst it is appropriate to seek an order that the other parties pay the costs, in reality this is not always recoverable.

 

A petitioner may find themselves in the ironic situation of not only feeling that their marriage has been destroyed by the intervention of a third party but then also having the dissolution of that marriage frustrated by the inaction of that third party, causing further distress, expense and prolonging the agony.

 

As with all issues concerning spouses, issues are best dealt with between the husband the wife without involving third parties if this can be avoided.  It is impossible to understand the ebb and flow of the breakdown of the marriage or judge the motivation that leads people to stray.     As lawyers, we must assist those whose relationships are in difficulty and if those marriages have irretrievably broken down, assist the spouses to dissolve the marriage with the most dignity, self respect and minimum pain or costs possible.  Inviting third parties into the proceedings is not, in my view, the way to do this.