When Breaking a Heart Is Breaking the Law

There was a time when a lady could judicially purchase balm for a wounded heart. That’s what happened in 1934 when Evelyn Montgomery Hazen obtained an $80,000 judgment against louse Ralph Porter Scharringhaus for breach of promise to marry. See “Paine on Procedure” in the February 2007 Tennessee Bar Journal. What has happened since 1934 to the heartbalm causes of action in Tennessee?

Alienation of Affections

This was a common law tort until abolished by Tenn. Code Ann. §36-3-701 effective July 1, 1989. The statute destroyed only future claims. The Supreme Court in Dupuis v. Hand, 814 S.W.2d 340 (1991), abolished the tort retroactively.

Criminal Conversation and Seduction

These common law torts were abolished by Tenn. Code Ann. §39-13-508 effective Jan. 1, 1991. The Supreme Court decreed abolition of criminal conversation retroactive in Hanover v. Ruch, 809 S.W.2d 893 (1991).

Breach of Promise to Marry

Formerly a common law tort, it was converted to a statutory tort effective April 8, 1949. Today a plaintiff’s case is more difficult to prove than it was in Evelyn Hazen’s day. Let’s take a stroll through Tenn. Code Ann. §§36-3-401 et seq.

§401: The marriage promise contract must be proved in either of two ways. A writing signed by the defendant is one way. An oral promise proved by two disinterested witnesses is the other way.

§402: Uncorroborated testimony of the plaintiff will not prove a contract.

§403: A mandatory jury instruction is that the jury shall consider age and experience of both parties plus any previous marriage of the plaintiff. A prior marriage can mitigate damages.

§404: If the defendant is more than 60 years old on trial day, two consequences follow. First, the plaintiff is limited to actual financial loss before trial date. Second, punitive damages are disallowed.

§405: No other damage action can be joined with the breach of promise action.

A rare modern appellate opinion is Rivkin v. Postal, 26 TAM 44-14 (Tenn. Ct. App., M.S., Koch, Sept. 14, 2001), no appl. perm. app. The outcome hinged on whether Lori Postal proved under §401 David Rivkin’s alleged promise to marry her.

Did a quitclaim deed signed by Rivkin conveying his fee simple interest to himself and paramour Postal as joint tenants suffice? No. “Nothing within the four corners of the deed alludes to any promise or contract of marriage …” In a footnote Judge Koch wrote a list of documents that might suffice, including a marriage license application or correspondence between the parties or a prenuptial agreement.

What about two disinterested witnesses? Plaintiff Postal called to the stand only her parents, hardly “disinterested.” Moreover, these parents were also creditors of their daughter; they advanced loans after Rivkin dumped her.


Bad people can now alienate affections, criminally converse, and seduce with legal impunity. But a marriage promise not meant to be kept had best be softly whispered.

DONALD F. PAINE DONALD F. PAINE is a past president of the Knoxville and Tennessee Bar Associations, and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP.





SARAH Y. SHEPPEARD SARAH Y. SHEPPEARD is a partner with Sheppeard & Mynatt PLC and is a past president of the Knoxville Bar Association. Both authors are graduates of the University of Tennessee College of Law.

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