No Heart Balm Here

Can you obtain sex -- or marriage -- by fraud? No, in most states. There are fairly broad "anti-heart balm" laws around, and for good reason. It really can't be for a jury, or worse yet a lone judge, to decide what someone's feelings are and whether the emotional interplay between people is the reason they do things.


There used to be all sorts of marriage laws. A promise to marry could be enforced in court, by specific performance. A false promise made to induce marriage could be enforced, or the subject of a suit for damages, as well as grounds for divorce. In many cases, similar kinds of claims could be made for inducing someone to have sex with you. And for the bizarre tort known as "alienation of affection," which was basically a civil lawsuit for damages against someone who carried on a love affair with your spouse because, of course, if this evil seducer hadn't come along, your spouse would have kept right on loving you.

But the problem is, somewhere along the way, a jury has to decide whether one person is really in love with someone else. And you just can't. Get twelve people sitting around together and they may well have difficulty agreeing on what "love" really is, much less agreeing on why it is that people get married. So all these "heart balm" claims, designed to assuage the exquisite pain of a broken heart with the sure-fire remedy of cold hard cash, have pretty much fallen by the wayside of modern jurisprudence.

If there was going to be a "heart balm" case, it would be Askew v. Askew (1994) 22 Cal.App.4th 942, referred to here by Eugene Volokh. Basically, the wife admitted that she lied to her fiance about loving him, being attracted to him, and enjoying sex with him. Based on his belief in her statements, he transferred five pieces of property that he owned individually into the marital estate. The couple then divorces and husband sues wife for fraud, asking the court to undo the dedication of the property into the marriage. The court says "no way," because that sort of thing -- even though, in a commercial context, it would obviously be fraud -- it would open up a huge can of evidentiary worms for future courts to sort out.

The thing about a policy decision like this, though, is that it leaves a bad taste in the mouth. Husband here was lied to, and in a very personal and hurtful sort of way. You want the wife, the lying, deceiving, theiving wife, to not get all that money. (No sexism here, please -- if it were a lying, deceiving, theiving husband who lied to get the rich woman to marry him, you'd want that same result.) But the problem is, in the next case, the spouse might not admit to the deception, and then a jury has to sort out whether she really loved him back then or not.

It's the right result, and it's there for a good reason. I agree with it, even though it may taste like ashes in a romantic's mouth.