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What is Criminal Conversation?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 06 November 2016
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Criminal conversation is a tort or civil wrong involving sexual intercourse with someone who is married, brought as a suit against the extramarital partner. Otherwise known as adultery, criminal conversation does not remain in the legal code of very many regions. In regions where it is still considered a tort, it is possible for the innocent spouse to bring suit in a court of law for monetary damages. Two possible defenses to the suit are that the innocent spouse consented to the sexual activity, or the partners were separated with clear intent to divorce.

To prove a case for criminal conversation, the innocent spouse must be able to document sexual intercourse outside the marriage and the suit must be brought within the statute of limitations prescribed by law. Defenses such as an unhappy marriage and adulterous behavior on the part of the innocent spouse are usually not considered by the court. As discussed above, courts will consider defenses that the innocent spouse consented or was involved, as in the case of people who have an open marriage or cases where one partner acts as a panderer for the other.

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In many regions, criminal conversation is considered an obsolete tort and it has been stricken from the legal code or it remains, but is never enforced. This has accompanied a shift in divorce law as attitudes about legislating morality have changed. For example, many regions have enacted no-fault divorce laws, allowing people to dissolve a marriage without having to prove wrongdoing on the part of one of the partners. Under laws requiring proof of fault, people have to provide evidence in the form of proof of adultery or abuse in order to separate. No-fault laws have become the norm in most regions.

Damage awards in criminal conversation suits vary. The court generally considers the length of the marriage and the precise nature of the situation. Someone who walks in on a partner having sex with someone else, for example, may be awarded higher damages on the grounds that emotional pain and suffering would have been heightened by seeing the act occur. In areas where adultery is no longer regarded as a civil wrong that would entitle the innocent party to compensation, such suits cannot be brought, although in a divorce where adultery is involved and there is a prenuptial agreement, the adulterous spouse may be forced to forfeit part of the settlement.

A related concept is alienation of affection. Alienation of affection is also an obsolete tort in many regions. This involves attempts to separate or drive apart a couple, without the presence of sexual intercourse outside the marriage. Someone who encourages a person to leave a partner, for example, might be charged with alienation of affection. If a suit is brought in court for this particular tort, damages can be awarded to the innocent spouse.

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