For most people, marriage means that the two spouses will not have sexual relations with any person except their spouse. Unfortunately, sometimes this right of exclusive sexual access is violated. When this occurs, there is a desire on the part of the innocent spouse to seek revenge against the third party who had sex with their spouse. Massachusetts law used to allow lawsuits for the harm to the marriage caused by the third party. The Common Law which was derived from old English law allowed lawsuits for “alienation of affection” and “criminal conversation.”
The tort of criminal conversation allowed the wronged spouse to sue the paramour for violation of the right of exclusive sexual access from the marriage. In other words, it was a lawsuit against the third party for sex with their spouse. The tort of alienation of affection was a lawsuit against the paramour for causing their spouse to stop having affections within the marriage. This usually resulted in a divorce as a result of the adultery. It was not uncommon for a lawsuit to allege both alienation of affection and criminal conversation.
In Massachusetts, when cheating occurs in a marriage, the wronged party can no longer sue for damages. Massachusetts General Laws Chapter 207, Section 47B prohibits lawsuits for both alienation of affection and criminal conversation. As a result, when cheating occurs in a marriage, the only recourse through the courts is an action for divorce against the spouse.
Cheating in a marriage can be devastating to the innocent spouse. Some couples manage to save their marriage after an affair. Others separate and end the marriage by divorce. When cheating occurs in a marriage, both spouses should consult an experienced family law attorney to determine their rights and understand divorce. Many people need to understand their rights in a divorce before deciding if they want to save their marriage.