In the U.S. you used to be able to sue your cheating spouse’s lover. Although many think divorce and infidelity cases are common, that kind of lawsuit has gone away. This week, Japan’s Supreme Court rejected a damages claim brought by a man in his 40s against his former wife’s then-lover.

divorce infidelity

Woman from Tokyo

In the Japanese top court’s Third Petty Bench, presiding Judge Yuko Miyazaki said that it is impossible to demand, without special circumstances, that a divorced spouse’s then-extramarital partner pay damages for mental pain from the divorce.

Even if infidelity breaks down a marriage and leads to divorce, unless there are exceptional circumstances, such as the third party involved unreasonably interfering in the marriage in a bid to prompt a divorce, the third party is not liable for paying damages for the divorce.

The ruling does not affect the right to claim damages against a spouse and his or her lover over infidelity itself within three years after detecting the affair.

Florida Law Turning Japanese?

American law used to recognize the tort of “alienation of affection” — causing a woman to lose affection for her husband and often to leave the husband because of the cheating lover.

I’ve written about heart balm statutes before, especially as they relate to engagement rings. These common law torts are commonly referred to as “heart balm” statutes, because they permit the former lovers’ heartaches to heal without recourse to the courts.

The purpose of the heart balm statutes was originally to prevent the perpetration of fraud by litigants who would use the threat of a breach of promise of marriage to force defendants to make lucrative settlements in order to avoid embarrassing publicity.

The Florida heart balm statute, originally passed in 1941, abolishes common law actions for alienation of affections, criminal conversation, seduction, and breach of contract to marry.

The Florida Legislature found that those who break engagements may be “free of any wrongdoing … [and may be] merely the victims of circumstances.”

The preamble declares it to be Florida public policy that the best interests of the people of the state are served by the abolition of the breach of promise action.

Lovers in Japan

In the Japanese case, the man living in eastern Kanto filed a ¥4.95 million damage claim against his former wife’s partner in an adulterous relationship. The couple, with two children, divorced earlier that year after the wife’s affair came to light in 2010.

The Supreme Court overturned a lower court decision ordering the extra-marital partner to pay ¥1.98 million in damages.

The Supreme Court of Japan ruled that whether to divorce is essentially a matter between a married couple, and that the adulterous partner should not bear direct responsibility for the couple’s breakup.

However, the court noted that it is possible to claim damages against such a partner who has intervened in a married couple’s relationship with the aim of causing them to divorce.

The Japan Times article is here.