If your spouse has a boyfriend or girlfriend and that relationship breaks up your marriage, the innocent spouse can sue the guilty spouse’s lover for monetary damages based on allegations of emotional harm caused.
There may also be an action against someone like an in-law or other near relative who advised a defecting spouse to leave the marital relationship. That’s right, if your mother-in-law played an active role in your loss of affection from your spouse, and you can prove she did so maliciously, you could probably sue her for alienation of affection. Liability hinges on whether the family member’s conduct arose from malice or other improper motive.
Although the innocent spouse can sue, the amount that a court will award is usually small and often these claims are settled out of court for a much smaller amount than the unhappy spouse sued for.
To succeed, the innocent spouse must prove misconduct in that the guilty spouse left him or her for the lover and that the lover actively caused her to leave him (an element of persuasion or coaxing is envisaged). The courts use the words: “…an admission by the defendant that he had actively enticed the plaintiff’s wife from him and had seduced her affection…” And “… the plaintiff’s wife left him in consequence of her association with the defendant….there was any coaxing or talking over or persuasion by the defendant…”
If the marriage had already broken down and the spouse and the lover met after the fact, there would be no claim.
In layman’s terms, you may sue your spouse’s paramour. To prove this case legally, however, you must satisfy the following:
1. You and your spouse were happily married and a genuine love and affection existed between you.
2. The love and affection was alienated and destroyed.
3. The wrongful acts of the defendant produced the alienation of affection.
Source: Bregman’s Attorneys. www.roylaw.co.za (0)11 646-0335