Sweathearts - Can I sue them?

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Today's world is becoming more litigious than before. Persons are suing their neighbors for nuisance, while employees are suing their employers for wrongful termination and citizens are suing the government and children are now suing their parents; why then, can a Wife not sue her husband's mistress or vice versa?

In today's society, many women find themselves single during the latter years of their lives, after having sacrificed their own careers and livelihood, to allow husbands to pursue careers of their own, while the woman raise children, only to later discover that their husbands are having adulterous affairs with other women. The typical scenario would be- "She set her sights on him….knew he was married….but pursued him nonetheless destroying families".

In claims of adultery , the most common question is whether one can sue a spouse's sweetheart (the term used colloquially) for interference with another in a marriage, resulting in the breakdown in the marriage. Logically, it appears possible, as a marriage is a covenant between a man and a woman. Any martial interference of the opposite sex of either party should qualify the aggrieved spouse to damages. Although this may appear to be a sensible and rational approach, "interference" is neither a ground or a bargaining tool for damages in divorces in The Bahamas.

According to Section 16(1) of The Matrimonial Causes Act, either party to the marriage may file for divorce by Petition to the Court by satisfying one of the following grounds:

i). since the celebration of the marriage one of the parties has committed adultery;
ii). since the celebration of the marriage one of the parties has treated the other with cruelty;
iii). one of the parties has deserted the other for at least two (2) years continuously;
iv). one of the parties has lived separate and apart from the other for of at least five (5) years continuously;
v). has since the celebration of the marriage one of the parties is guilty of homosexually, sodomy or bestiality.

Any spouse relying on adultery as a ground for divorce can include the sweetheart as a party to the action unless the court decides otherwise.

In the United States of America recent cases report spouses being awarded exorbitant amounts in damages for actions brought against their husband's "mistress" under a provision in American legislation known as "alienation of affection". Although our Bahamian law does not recognize alienation of affection, as we are guided by established by British law, the United States case law can be persuasive in special circumstances. Since The Bahamas is known to adopt everything else foreign why then should Parliament not create or amend legislation to give effect to damages against sweethearts?

Lord Denning cited in the English case of Gottlieb v. Gleiser and Another that although the United States allows actions to be brought for "alienation of affections". He stated that:

"We know no such action in this country, nor is it to be desired. If a husband is to keep the affection of his wife, he must do it by the kindness and consideration…trusting that she will be strong enough to thrust away both the possessiveness of her parents and the designs of would-be lovers. If she is weak ...harm done cannot be righted by recourse to law; nor is money any compensation."

Although English case law previously allowed actions against husbands if a mistress enticed him away from the marriage, this law has been abolished and no longer applies. Since then, and until there is reform to the laws of this jurisdiction, it appears that there is no remedy available to a spouse whose marriage has been threatened by a sweetheart.

If our laws are amended to reflect and accept a provision for alienation of affection it would act as a deterrent to sweethearting as spouses and potential sweetheart may reconsider their actions in light of the exorbitant amounts that a court can award against them.

Nerissa A. Greene, Partner

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