Now, my question here is limited specifically to the situation in which the couple appears to be happy. The spouse tells his/her other sigificant how much s/he loves her/him, they have all kind of fun with their children, family, friends, everything appears to be just great, but one spouse is secretly having an affair, intentionally lying to his/her other significant and the affair-partner agrees to carry on the affair under wraps.
The injured spouse has many choices for dealing with his partner when an infidelity is discovered. S/he can divorce, break up, stay together, throw things at him/her, you know all. Some even go to the extent of having an affair as well as a reprisal. But the point is that, there is some level of accountability for the betrayer. The injured spouse loses his/her spouse; the family, s/he may have to pay spousal support in divorce, bringing up the children, etc. S/he will also likely to bear the wrath of family, friends and, if the matter goes public, the society.
Now, what about the affair-partner? There is that age-old argument that well; it is not HIS/HER fault. The spouse who cheated is the one who chose to break his/her marriage vows. The argument goes: Since the affair-partner did not make any vows to the husband/wife, why should be held responsible? However, there is this new age argument that well, why shouldn’t the affair-partner bears some responsibility as well? Why should the affair-partner not be equally at fault?
What if the affair-partner did not make any commitments to the husband/wife? Does that make it right for the affair partner to go after someone else’s husband/wife? Does that make it right that the affair-partner to participate in the lie, the deceit, the fraud? Does that make it OK to intentionally harm and cause emotional injury to the innocent wife/husband? Even, if the cheating husband/wife pursued the affair-partner, should the affair-partner still knowingly enter into the affair?
We have decided as a society that certain behaviours are not OK. As a result, we have decided that there are certain standards by which people are obligated to act. We expect people to act according to “that degree of care that an ordinarily prudent person can be reasonably expected to exercise under similar circumstance.” If someone acts “unreasonably” in those situations, then they can be sued for the harm caused to a third person as a result.
For instance, if you are injured by a driver who failed to exercise reasonable care when driving on the freeway, you can sue them because all drivers have a duty to act reasonably to prevent harm to other road users. Doctors are supposed to perform their duties as any other reasonable doctor would in a similar situation, or else face liability for malpractice. Store owners must put up a sign when a floor is wet, because society considers that to be the reasonable way to act to prevent someone from harm. Likewise, homeowners must warn guests in their home of any sort of danger that may be posed.
If someone punches you, you can sue them for injuries for intentionally hurting you! You can even sue someone for intentionally harming you emotionally and psychologically. If someone tells a bunch of lies about you, you can sue them for defamation and damaging your reputation. You can sue the manufacture of a toy for failing to adhere to certain standards to make the toy safe to play with by your children. You can even sue someone for interfering with a potential business relationship- for convincing someone to breach a contract with someone else.
However, in many jurisdictions you cannot sue an affair-partner for interfering with the most important relationship of your life, or for helping them to break their commitments or vows to their wives/husbands. Isn’t it reasonable to expect that other people won’t have a secret affair with your spouse?
A handful of states in the United States do allow a wife to sue the mistress. These states have what is called “alienation of affection” laws that allow a spouse to sue the person who ‘seduced’ the spouse and ‘alienated’ the spouse away from his/her husband or wife. To win, an alienation of affection claim, you must prove that, love between the married spouses must have existed; the marital love must have been alienated and destroyed; and the third party's conduct has to be proved to be malicious interference with the marriage relationship.
Historically, the alienation of affection law was based on the belief that a wife was the property of her husband. Therefore, when a woman was emotionally or sexually involved with another man, she was considered to have been stolen. Most states in the United States have abolished this type of lawsuit as it is considered to be archaic and an unacceptable form of revenge. Those who want the alienation of affection laws to remain believe that alienation of affection claim protect traditional marriage.
It is doubtful if alienation of affection is applicable in Tanzania. Some have argued that all we would be doing is holding them accountable, along with the cheating spouse, for failing to act the way we expect anybody else to act, the way we expect any ordinary person, any reasonable person, to act. And, that, if the affair-partner were required to pay damages to the innocent spouse for the injuries she caused, then perhaps that there would be a deterrent effect and less breaking marriage vows would result all around.
I know I am simply discussing general legal principles here and applying them to the circumstance of the “other woman” or “other man.” But is it just and right that people should be held accountable for the harm they cause to others, especially harm to the things most of us consider to be the most valuable, fundamental relationships in our lives? If yes or no under what basis?
The article is not intended to be a legal advice. Neither does is answer the question posed. Rather, it explores different arguments and invites you for your comments. If you need legal advice you are advised to seek professional legal adviser.
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