Breach of promise, seduction and 'crim. con.': the vanished lawsuits of English law

What were 'heart balm' actions?

Heart balm actions were civil claims for damages after a broken engagement or a wrong done to family honour, rather than after a physical injury or a financial loss. The term comes from American usage, where it covered breach of promise to marry, seduction, alienation of affections and criminal conversation. English law had the same family of claims under older names, and they all shared one feature: a court put a money value on injured feelings, reputation or the loss of a household member's services.

In England the main members of the family were four. The first was breach of promise, a claim by one party to an engagement against the other. The second was criminal conversation, a husband's claim against his wife's lover. The third was seduction, a father's claim over his daughter. The fourth was enticement or harbouring, a claim against a person who persuaded a spouse or child to leave home or sheltered them afterwards ^[2][3].

These claims said a lot about who was thought to be wronged. Several were brought by husbands or by fathers on behalf of daughters, and the legal reasoning often treated a wife or daughter as a source of "services" whose loss deserved compensation ^[7]. By the middle of the twentieth century the claims looked out of step with ideas of equality, and Parliament removed them in two main steps: 1857 for criminal conversation and 1970 for most of the rest ^[4][5][3].

The sections below follow the claims one by one. For the divorce side of the same story, including the double standard that gave husbands more rights than wives, see the companion article on adultery and divorce law in England.

Timeline

1. 1769In Grosvenor v Cumberland, Lord Grosvenor wins £10,000 in a criminal conversation action against the King's brother.
2. 1836Norton v Melbourne: the jury rejects a husband's claim against the Prime Minister, but the publicity nearly brings down the government.
3. 1857The Matrimonial Causes Act 1857 abolishes the action for criminal conversation, while a husband can still claim compensation from his wife's lover in divorce proceedings.
4. 1969Eva Haraldsted brings a breach of promise claim against the footballer George Best, remembered as one of the last widely reported cases [6].
5. 1970The Law Reform (Miscellaneous Provisions) Act 1970 is passed (dated 29 May 1970): engagements stop being enforceable, and damages for adultery, enticement and seduction go.
6. 1971The Act comes into force on 1 January in England and Wales; it does not extend to Scotland or Northern Ireland.
7. 1984The Law Reform (Husband and Wife) (Scotland) Act 1984 ends actions for breach of promise and enticement in Scots law.

What was criminal conversation?

Criminal conversation, usually shortened to "crim. con.", was a common-law tort that let a husband sue the man who had had sexual intercourse with his wife ^[5]. The word "conversation" was an old euphemism for intercourse, and it survives only in this phrase ^[5]. Despite the name, it was a civil claim for damages, not a prosecution.

At first only a husband could sue, and only the other man could be the defendant. A husband could succeed whether or not his wife had consented, unless the couple were already separated and the defendant had not caused the separation ^[5]. Cases were heard in the Court of King's Bench at Westminster Hall and attracted wide press coverage. Because the husband, the wife and the defendant could not give evidence, proof came from servants and observers, which made the trials a source of gossip as well as law ^[5].

Awards could be large. Accounts of the best-known trials record that in Grosvenor v Cumberland in 1769, Lord Grosvenor won £10,000 against the King's brother, and that in Worsley v Bisset in 1782 Sir Richard Worsley won only a shilling because the court found he had colluded in the affair ^[5]. In 1836 the jury in Norton v Melbourne rejected a claim against the Prime Minister, Lord Melbourne, although the publicity nearly brought down the government ^[5].

The Matrimonial Causes Act 1857 abolished the action, but not the underlying idea. A husband who petitioned for divorce could still claim compensation from his wife's lover, with damages limited to the loss of his wife's services and harm to his reputation and family life, and paid to the court ^[4]. That limited form of the claim lasted until the 1970 Act, so the old action was reshaped rather than ended in 1857 ^[4][3].

How did breach of promise cases work?

A breach of promise case treated an engagement as a contract that a court could enforce with damages, and it was almost always brought by a woman against a man. Until 1970, a woman whose fiancé ended an engagement could sue, while a woman could change her mind without penalty ^[6]. The remedy was money, never an order to marry.

Damages compensated losses that were partly financial and partly social. Historically they covered the loss of the household position that marriage would have brought, together with damage to reputation. In the early twentieth century they also covered emotional distress and reduced marriage prospects, and they were higher where the couple had had sexual relations ^[6]. The reasoning rested on a view of an unmarried woman's prospects that now seems dated, and it is one reason the action was criticised as outdated.

By the 1960s the claims were rare but still in the news. One of the last widely reported cases concerned the footballer George Best, who was sued for breach of promise by Eva Haraldsted in 1969 ^[6]. Comic treatment of the genre in Dickens's Pickwick Papers shows how familiar the subject was to Victorian readers ^[6].

The action also sat inside a wider story about sex and marriage. Damages were reported to be higher where a couple had had sexual relations before the wedding, which shows how closely the law tied a woman's marriage prospects to her sexual history ^[6]. The cultural side of that history, from painting to the novel, is covered elsewhere on this site under the Victorian image of the fallen woman.

What did the 1970 Act abolish?

The Law Reform (Miscellaneous Provisions) Act 1970 abolished the action for breach of promise of marriage, the husband's right to damages for adultery, and the actions for enticement, seduction and harbouring. It received Royal Assent in 1970, dated 29 May on the legislation.gov.uk text, and came into force on 1 January 1971 ^[3]. Its headings group the provisions into legal consequences of ending an agreement to marry, enticement of a spouse, and supplemental matters ^[2].

Section 1 is the heart of the Act. An agreement to marry "shall not under the law of England and Wales have effect as a contract giving rise to legal rights," and no action may be brought for breach of such an agreement, whatever law governs it ^[1]. The rule applies to agreements made before the Act, but it does not stop an action already begun ^[1].

Section 4, now shown as repealed in the current text, provided that no one could claim damages from another person on the ground of adultery with the claimant's wife ^[3]. This ended the compensation that the 1857 Act had preserved. Section 5 abolished liability in tort for inducing a spouse to leave or live apart from the other spouse, for depriving a parent of a child's services by raping, seducing or enticing the child, and for harbouring another person's spouse or child. Actions already started were preserved ^[3].

The seduction action deserves a note of its own. It began as a father's claim for the loss of his daughter's services, supported by a legal fiction that treated the parent-child relationship like that of master and servant. By the end of the nineteenth century damages reflected the social stigma of pregnancy outside marriage more than any real loss of work, and fathers often won before juries ^[7]. Later reform recast it as a claim for harm to the woman herself, but the claim was criticised for treating women as property until the 1970 Act removed it ^[7].

What happens to engagement rings and gifts today?

An engagement ring is presumed to be an absolute gift under section 3 of the 1970 Act, but the presumption can be rebutted. A person who gave a gift on the condition that it be returned if the engagement ended can still recover it, even if that person ended the engagement. A ring is covered by the same rule: it is presumed to be an absolute gift unless it was given on a condition of return if the marriage did not take place ^[3].

The Act therefore kept the question of gifts and property while removing damages. Section 2 provides that when an engagement ends, the rules that govern spouses' property rights apply to property in which either party had a beneficial interest during the engagement. The judge's powers under section 17 of the Married Women's Property Act 1882 and section 7 of the Matrimonial Causes (Property and Maintenance) Act 1958 extend to these disputes, and an application under section 17 must be made within three years of the engagement ending ^[3].

In practice this means that the law no longer asks who broke the engagement. A court looks instead at who gave what, on what terms, and who owns the property. Disputes between engaged couples about a shared home or savings are decided as property disputes, in the same way as disputes between married couples.

For couples who live together without marrying, the position is different again. They have no equivalent of the engagement-property rule, and the rights of cohabitants are the subject of continuing reform, discussed in the article on whether England and Wales will give unmarried couples new rights.

Do Scotland and Northern Ireland follow the same rules?

Scotland reached the same result for breach of promise in 1984, by a separate Act, while the position in Northern Ireland is not established here. The 1970 Act states that it does not extend to Scotland or Northern Ireland ^[3]. Its provisions were therefore not law in either, although the policy was similar.

Scotland acted through the Law Reform (Husband and Wife) (Scotland) Act 1984. Section 1 says that under Scots law a promise or agreement to marry creates no rights or obligations, and that no action for breach can be brought in a Scottish court, whatever law governs the promise. It applies to promises made before the section took effect, but not to actions already begun ^[8]. Section 2 abolished adherence, the old order requiring one spouse to live with the other, and it removed liability in delict, the Scots equivalent of tort, merely for inducing someone's spouse to leave or stay apart from them. That is the Scottish form of enticement ^[8].

The provisions of the 1984 Act examined here deal with promises, adherence and enticement. This article did not check how Scots law treats engagement gifts and property, so no claim is made about it. Anyone with a real dispute should seek advice that applies to the nation where the parties live.

For Northern Ireland, this article could not confirm from a primary source when, or whether, each of the old claims ended. The practical point is that a person in Northern Ireland should not assume that the English rules apply.

Frequently asked questions

Who keeps the engagement ring if a wedding is called off?

It depends on the terms on which it was given. In England and Wales, section 3 of the 1970 Act presumes that an engagement ring is an absolute gift, but the giver can rebut that by showing it was given on a condition of return if the marriage did not happen. The presumption does not turn on who ended the engagement.

When was the action for criminal conversation abolished?

The Matrimonial Causes Act 1857 abolished it, but a husband could still claim compensation from his wife's lover in divorce proceedings. That compensation was finally abolished by the Law Reform (Miscellaneous Provisions) Act 1970, which came into force on 1 January 1971.

Could a father sue for the seduction of his daughter?

Yes, until 1971. The action rested on the father's supposed loss of his daughter's services, and generally the seduction had to result in pregnancy. Section 5 of the Law Reform (Miscellaneous Provisions) Act 1970 abolished it for England and Wales.

Can engaged couples claim property after a break-up?

Yes, as a property dispute. Section 2 of the 1970 Act applies the rules on spouses' property rights to property in which either partner had a beneficial interest during the engagement. An application under section 17 of the Married Women's Property Act 1882 must be made within three years of the engagement ending.

Can you sue for breach of promise to marry in Scotland?

No. Section 1 of the Law Reform (Husband and Wife) (Scotland) Act 1984 provides that a promise or agreement to marry creates no rights or obligations in Scots law and that no action for breach can be brought in a Scottish court. The rule does not affect actions that had already begun.

Does the 1970 Act apply in Northern Ireland?

No. Section 7 of the Law Reform (Miscellaneous Provisions) Act 1970 says it does not extend to Scotland or Northern Ireland. Northern Ireland's own rules on breach of promise and the other old claims were not confirmed from a Northern Ireland source for this article, so they should be checked separately.