Every so often another lawsuit happens that reminds me that the ‘heartbalm’ lawsuits still exist, in some form. The ‘alientation of affection’ lawsuit is a wonderful example of that, particularly as it surfaces quite often in places such as North Carolina, but there are others. In my opinion, one of the most fascinating in recent memory was essentially a ‘breach of promise to marry’ lawsuit.
Breach of promise to marry actions were premised on the concept that a marriage proposal, if accepted, was a legally-cognizable contract. Given the historical importance that marriage had to women both socially as well as economically, these lawsuits reflected the very real damage to a woman’s reputation if the marriage offer was rescinded or the engagement broken off. A woman thus jilted would often have been seen as ‘damaged goods’ by other men, and her future marriage prospects therefore diminished. The heyday of these suits was the 19th century, and these suits provided a fascinating study in contrasts: Victorians espoused highly-sentimentalized and romantic notions of love, and there was a very real tension between these idealized conceptions of romance and the idea that one could ascribe economic damages to a breach of promise to marry, and hence basically ‘commodify’ love. These lawsuits were both common as well as scandalous (and for a marvelous satire on this institution, I recommend you read Charles Dicken’s novel “The Pickwick Papers”), and the titillating details that came out in these trials were gossip fodder for the 19th century version of supermarket tabloids. One interesting legal twist is that historically the common law (until the late 19th century) precluded the parties in a lawsuit from testifying, based on the premise that they were interested parties and hence their testimony was likely to be self-serving. In breach of promise to marry suits, however, this caused the absurd situation that the two people who were central to the relationship (e.g., the jilted bride-to-be and her ex-betrothed) were precisely the two people from whom the court never heard. Love letters were read outloud in court, and witnesses testified to stolen kisses, passionate glances, strolls arem-in-arm and whatever other details about the relationship they had gleaned, but the ex-lovers themselves could only sit and listen.
So, why is this anything more than just an archaic fragment of our legal past?
Well, some of you may remember that in 2008 the case of RoseMary Shell was in the news. Shell sued her ex-financé for breaking off their engagement, and was awarded $150,000 in damages by a jury in Georgia. Shell had resigned from a well-paying job in Florida to be with her then-beau, Wayne Gibbs. Shell claimed that she had suffered very real financial losses as a result, as she was unable to secure an equally-well-paying job in Georgia, besides the emotional distress she susffered (Gibbs had, charmingly enough, broken off the engagement by leaving her a note in the bathroom). Gibbs, for his part, testified that he had paid off $30,000 of her debts, only to discover that she had even more debt than she had disclosed. Did the jury award her damages based on emotional distress, or her loss of earning power? It’s not clear, but the latter certainly provided a more tangible yardstick for the jurors to use, and perhaps that’s what swayed them. It leaves open the question of whether Shell would have sued had Gibbs broken off the engagement more sensitively, and whether the facts of this case are such that this case’s outcome was highly unusual. The historic premise underlying these lawsuits was, after all, that a woman’s economic and social status was harmed by the breach. While the social aspect may no longer ring true, there may have been just enough of an economic loss in this case to make it fit the 19th century paradigm– if Shell did in fact give up her career to be with her ex-fianceé, then it could be said there were quantifiable damages. Of course, a jury might also have felt that her emotional distress counted for something as well.
Was this a good decision? Personally, I feel a ‘no fault’ regime makes the most sense. The term “breach of promise” suggests this was a contractual agreement– but do people still think of engagements (despite the nomenclature) as some sort of binding agreement? Does it make conceptual sense to move towards a no-fault divorce regime but treat engagements differently? Do decisions such as this, coupled with at-fault divorce, lead indirectly but inexorably to the growing prevalence of ‘divorce by murder’ cases? How does one quantify emotional distress anyway, and is that an appropriate concept to be applying in deeply-personal relationships? However one looks at it, it is another example of the tension between “family” and “law”.
Incidentally, referring to the outcome of her lawsuit, Shell said at the time, “This has been the most difficult thing I’ve ever had to do and I think justice has been served,” Shell said.
For some video footage of the story, please see: