The Utah Supreme Court has overturned a state law under which a person could sue his or her spouse's lover for having sex with the spouse.
The justices retained a broader "alienation-of-affection" provision allowing suit against anyone who causes the breakup of the plaintiff's marriage.In two cases decided last week, the justices abolished the tort of "criminal conversation."
That tort "came into existence primarily because of the great importance that feudal society placed on ensuring that the right of inheritance to property, title and office descended to legitimate children only," wrote Justice I. Daniel Stewart.
"The tort has its roots in common-law rights to the body and services of a spouse - historically the wife," wrote Justice Christine Durham in a minority opinion in that case.
The Utah court, in abolishing that provision, said it could be applied to cases where a sexual affair happens after the marriage already is on the rocks.
"To the extent that the tort of criminal conversation provides a (basis for suing) for adultery when the marriage commitment is dead, it serves no useful purpose," wrote Stewart.
Instead, the justices ruled that the broader alienation-of-affection provision would allow a lawsuit for damages not only against a spouse's lover but against anyone who breaks up a marriage.
Justices Durham and Michael Zimmerman concurred in overturning the criminal conversation statutes but dissented against upholding the right to sue for alienation of affection.
Stewart and Justice Richard Howe argued that a spurned spouse should be able to collect damages if the third party's actions were the dominant cause of the marriage's failure.
Stewart said a common cause of an alienation-of-affection claim is the result of one party - such as professors, employers, doctors or psychiatrists - having authority and power over another.
About half the states have abolished alienation-of-affection laws, which have been used against clerics and in-laws as well as lovers.