(concurring in result and dissenting):
I join in the reversal of this judgment, but dissent from Part II of the majority *1223opinion because I believe that the cause of action for alienation of affections should be abolished. It is an anachronistic holdover from a bygone era which modern rationalizations have failed to justify. The majority opinion identifies and addresses in turn six arguments presented by the appellant for abolition of the cause of action. Although the majority opinion rejects each of the appellant’s arguments separately, it fails to set forth any affirmative reasons in policy or precedent for the retention of this cause of action in Utah. The majority opinion goes on to make the requirements for recovery so difficult that it is unlikely anyone will ever pursue this cause of action in court again. By this approach, I believe the majority acknowledges that the cause of action is defective in its weak theoretical basis and the numerous opportunities it offers for abuse. However, instead of eliminating the cause of action in a forthright manner, the majority opinion preserves the cause of action in a way that insures that its most likely use will be outside of the courtroom, as a tool to extort “settlements” from prospective defendants. The cause of action for alienation of affections should be abolished because there is no longer any legal basis for its retention. It protects no interest and furthers no policy not better served by other means. A brief review of the history of alienation of affections reveals why this is so.
In the early days of the common law, marriages were entered into for economic, diplomatic or dynastic reasons and were, indeed, bargains with specific terms set by the families of the bride and groom. See, e.g., Schultz, “Contractual Ordering of Marriage: A New Model for State Policy,” 70 Cal.L.Rev. 211, 224-25 (1982). Consideration was offered by each party: the groom agreed to protect and support the bride and her children, and the bride agreed to bear heirs for the groom, educate them and administer the household. Individual marriage contracts and the rights of marriage were valuable incidents in feudal tenure both economically and militarily. See, e.g., 3 Holdsworth, History of English Law, 61 (3d ed. 1923). In addition, the identification of legitimate offspring was of crucial importance to inheritance laws. See, e.g., Lippman, “The Breakdown of Consortium,” 30 Colum.L.Rev. 651, 655 (1930); Comment, “Piracy on the Matrimonial High Seas — The Law and the Marital Interloper,” 25 Sw.L.J. 594 (1971).
However, although the marriage relationship “was founded on contract [in the middle ages], ... the rights and duties involved in the relationship were fixed to a large extent by law and not by the agreement of the parties; and the consequences of creating the relationship might affect third persons .... ” 2 Holdsworth, supra, at 463. The marriage created a new status for each of the parties. The importance of status in medieval society can scarcely be overemphasized.
That there were different classes of society which should be governed by different laws would have appeared a truism to the mediaeval legislature... . The king, the peer, the knight ... all occupied definite and legally fixed places in the hierarchy of society .... [I]n the Middle Ages the difference in legal rules was conceived of as depending upon the necessary and natural differences in the structure of society.
Id. at 464. Individuality, as we now value that concept, would have been regarded as akin to anarchy, placing a person outside of the benefits and protection of the law and denying him or her a position from which to interact with society. As far as the law was concerned, a person’s status and a person’s identity were the same: individual characteristics were irrelevant.
A wife in this system occupied a particular status as a female and as a married person. Bracton described three categories of human beings: “There is also another division of human beings, that some are male and other female, and others hermaphrodites. And females differ from males in many respects, because their condition is worse than that of males.” 1 Bracton, Laws and Customs of England * 35 (Twiss ed. 1879). Thus, as a female, the wife was considered her husband’s inferior by her *1224nature. Canon law imposed the view that a husband and wife were one flesh and one person in the law and that the person was the husband. Therefore, during coverture, even the woman’s separate status as an inferior female was subsumed in the conjugal unit. In this setting, a cause of action for the abduction of the wife, the ancestor of the cause of action for alienation of affections, recognized a challenge to the status of both husband and wife and vindicated real damage to contractual and feudal rights. Because of the wife’s legal disability, her actual consent or lack of consent was not considered. The action was brought by the husband against the third party, regardless of the issue of the wife’s consent. Under the feudal system, society at large had an economic, military and political interest in the enforcement of the marriage contract and the status of the married parties.
In the feudal era, because of the interconnections between interests in property and virtually all other aspects of society, “the law of property, and the remedies for the infringement of proprietary rights, were then much more highly developed than the law of contract, and the remedies for breach of contract.” 8 Holdsworth, supra, at 427. The “law of crime and tort was narrow” and “permeated by the idea of trespass — by the idea, that is, of forcible damage to person or property.” Id. at 421. In this era, taking into consideration the emphasis and development in the law, the highly structured nature of society, the accepted concept of the conjugal unit, and the inferior status of women, it is understandable that the husband’s interest in his wife and their relationship was expressed as a proprietary interest and that it therefore supported an action in trespass against a third party.
Although the “bargained-for” contractual aspects of marriage declined and the Renaissance concept of individuality eventually replaced the feudal concept of societal status, the common law forms of pleading preserved the husband’s action for damage to his marital rights as an action in trespass. The husband was said to have the exclusive and legally enforceable right to his wife’s services and company. The action was brought in trespass by the husband with a “per quod consortium amisit,” i.e., “whereby he lost the company [of his wife],” and was for “the loss and damage of the husband,” not for damage suffered by the wife or the conjugal unit. See Hyde v. Scyssor, 79 Eng.Rep. 462 (1620). The action was likened to the action “brought by the master for the battery of his servant, per quod servitium amisit,” i.e., “whereby he lost the service [of his servant].” Id. By Blackstone’s time, the husband’s legal rights with respect to his wife were described by the term “consortium” and included her society and services. See Feinsinger, “Legislative Attack on ‘Heart Balm,’ ” 33 Mich.L.Rev. 979, 989 (1935). The husband had a cause of action for an intentional interference with those rights. Under the title “Injuries Affecting a Husband,” Blackstone described abduction of the wife as follows: “[A]bduction or taking her away may either be by fraud and persuasion, or open violence: though the law in both cases supposes force and constraint, the wife having no power to consent ...” 3 Blackstone, Commentaries *139 (1768) (emphasis added). This action was exclusively the husband’s to compensate him for his injuries. The wife had no similar cause of action, as traditionally she had no right to her husband’s “services” but rather a right to his protection and support — unenforceable because of her legal disability. This disability was not viewed as an injustice in mid-eighteenth century England. Blackstone commented that “we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England.” See 1 Blackstone, supra, at *445. Thus, the proprietary cause of action originally reflected widely accepted views of status and legal rights in a society where contractual and legal obligations incident to marriages were part of a system of political, military and property obligations. The remedy provided by the law for violation of *1225those rights and obligations addressed injury to the society’s interest in those obligations. Moral infractions were separate matters left to the ecclesiastical courts. This cause of action for abduction gradually evolved into a personal tort action vindicating the husband’s legal, not contractual, rights to his wife’s services and society, called consortium. Parallel to this evolution, it may be seen that the rationale for the procedural disability of the married woman had broadened from the canonical “one flesh” to include the Blackstonian “protection and benefit” rationale.
The more modem form of the action for abduction appeared in England in 1745 when the court recognized a husband’s right to recover for the “enticement” of his wife away from their home. See Winsmore v. Greenbank, Willes 577, 125 Eng.Rep. 1330 (1745). In the United States, the common law action for abduction or enticement of the wife was adopted in every state but Louisiana. See Feinsinger, supra, 33 Mich. L.Rev. at 992 and n. 17; Note, “The Suit of Alienation of Affections: Can Its Existence Be Justified Today?” 56 N.D.L.Rev. 239, 241 (1980). The definition of consortium, originally the husband’s right to his wife’s services and company, was gradually broadened to include love, affection and in general, good relationships in the family. For example, in Jacobson v. Siddal, 12 Or. 280, 7 P. 108 (1885), the court declared that “[t]he injury done the husband consists in the dishonor of his marriage bed, the loss of his wife’s affection, and the comfort of her society, as well as any pecuniary injury for loss of services.” Id. at 285, 7 P. at 111 (emphasis added).
The growing unpopularity of the husband’s proprietary rights in his wife’s services was probably accelerated by the advent of the Married Women’s Acts in the latter half of the nineteenth century, which removed the married woman’s inability to sue and be sued. See, e.g., Comment, supra, 25 Sw.L.J. at 596-97. Courts were forced to re-examine the basis for the cause of action in order to decide whether the husband’s cause of action was now extinguished, or whether the cause of action could be extended to wives. The resulting discussions are notable for their variety. “While agreeing that the action was based primarily on loss of consortium, courts have defined the consequences variously as an injury to property, to the person, to personal rights, or to feelings.” Feinsinger, supra, 33 Mich.L.Rev. at 993. Some courts found that the wife had no right to sue for criminal conversation or alienation of affections. In Kroessin v. Keller, 60 Minn. 372, 62 N.W. 438 (1895), the Minnesota court refused to find a wife’s right to bring an action for criminal conversation, stating that the gist of the action was the possibility of illegitimate children and pointing out that “the wife whose husband commits adultery suffers no ‘disgrace’ and that in any event a woman [defendant] charged with adultery in all probability was not the seducer.” Id. at 991. In Duffies v. Duffies, 76 Wis. 374, 45 N.W. 522 (1890), the Wisconsin court refused to find an action for alienation of a husband’s affections. The court explained that such a cause of action would lead to a multitude of actions because a husband may be expected to yield to worldly temptations to which he is daily exposed, whereas a wife, with her purer nature, is occupied at home and not subject to such enticements. Id. at 993. See also Prosser, Law of Torts § 124, at 881 (4th ed. 1971).
The great majority of the states, however, sustained the right of the wife to maintain an action for criminal conversation and alienation of affections. See, e.g., Feinsinger, supra, 33 Mich.L.Rev. at 993. In order to do this, courts were forced to define consortium to include more than the husband’s well-established right to services, and to declare that the wife now had an equal right to consortium. See, e.g., Oppenheim v. Kridel, 236 N.Y. 156, 140 N.E. 227 (1923). Many opinions, finding the proprietary interest distasteful, denied the clear historical basis of the husband’s action in trespass, holding that the wife had an equal right to maintain the action because the enabling statutes removed the only barrier to her action, i.e., her legal disability to sue or be sued. See, e.g., Clow v. Chapman, 125 *1226Mo. 101, 28 S.W. 328 (1894). The wife’s legal disability was not, of course, the only reason she had possessed no cause of action in the common law. In the common law, she had no legally recognized right to her husband’s services: the basis for the action was the injury to the husband’s legal right to his wife’s services. Ironically, it is this very proprietary interest, rejected by the courts as “archaic,” which was granted to the wife.
By force of the marriage contract, husband and wife are each entitled to the society and comfort of the other, — the one to as great an extent as the other. As a wife is now placed on an equality with her husband in respect of her property and personal rights, and as a husband may have his action, as against a third person, for enticing away his wife, the wife has her action against third persons for enticing away her husband.
Id. at 107, 28 S.W. at 330. Thus, while the courts of the era criticized the idea of a proprietary interest in the wife, the decisions gave the concept new life by granting to the wife the same proprietary right to sue for the loss of consortium. See Lippman, supra, 30 Colum.L.Rev. at 664.
In spite of the broadened definitions of consortium, it is clear that the term continued to denote a property interest. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the United States Supreme Court addressed the question of whether a judgment for criminal conversation against the appellant had been discharged in bankruptcy. Under the bankruptcy act, a judgment could be discharged unless it had been recovered in an action “for wilful and malicious injuries to the person or property of another.” The appellant argued that the judgment had been discharged because criminal conversation was not an injury to the respondent’s “person” and that the gravamen of the action was loss of consortium, not injury to the property of the respondent. The Court held:
We think it is made clear by these references to a few of the many cases on this subject that the cause of action by the husband is based upon the idea that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, to the exclusion of all others, and so the act of the defendant is an injury to the person and also to the property rights of the husband.
Id. at 485, 24 S.Ct. at 508 (emphasis added). The same result was reached on the same question by the Kansas Supreme Court, where the judgment for alienation of affections was obtained by a wife. See Leicester v. Hoadley, 66 Kan. 172, 71 P. 318 (1903). In Sullivan v. Valiquette, 66 Colo. 170, 180 P. 91 (1919), the Colorado Supreme Court recognized “the right of the plaintiff to the body of his wife, and ... to her mind, unpolluted.” Id. at 172, 180 P. at 91. In a suit brought by a wife against her father-in-law, the Connecticut Supreme Court declared that the “gist” of the action was loss of consortium described by the court as “a property right growing out of the marriage relation .. .. ” Hudima v. Hudyma, 131 Conn. 281, 283-84, 39 A.2d 890, 891 (1944).
Another irony in the cases of this era lies in the fact that although the wife’s legal disabilities were statutorily removed, the law continued to treat the wife as incapable of initiating or consenting to her own change of affections or seduction.
For the purpose of maintaining the action, it is regarded as an actual trespass upon the marital rights of the husband although the consequent injury is really to the husband on account of the corruption of the body and mind of the wife, and it is in this view (that it is a trespass upon the rights of the husband) that it is held that the consent of the wife makes no difference; that she is incapable of giving a consent to an injury to the husband.
Tinker v. Colwell, supra, 193 U.S. at 483, 24 S.Ct. at 507 (citation omitted) (emphasis added). Thus, the alienated wife’s active participation in a relationship with the defendant is considered to be irrelevant in most cases. The defendant bears the entire burden of having alienated the wife’s affec*1227tions, even where the facts reveal her willing, if not eager, cooperation. Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759 (1954), cited by the majority opinion as Utah’s leading case, and the instant ease both illustrate this judicial tendency to ignore the wife’s volitional capacity.
The de facto retention of the assumption that a wife is unable to consent to an injury to her husband is an anomaly not present in those cases where the wife is the plaintiff. To the contrary, in actions brought by wives, it was commonly held that it was a good defense to show that the alienated husband was the enticer and that the defendant had merely yielded to his “seductive arts.” Romaine v. Decker, 11 App.Div. 20, 43 N.Y.S. 79 (1896). “The law imputes to [the defendant] no fault because of her attractiveness, nor because she may have been pleased with the admiration of plaintiff’s husband.” Whitman v. Egbert, 27 App.Div. 374, 50 N.Y.S. 3 (1898). In a peculiar Vermont case, the court commented that a wife could have no recovery against a prostitute for alienating the affections of her husband. “A single instance of adultery, had by a man accustomed to marital infidelities, with a common prostitute, who serves his purpose on a chance occasion, does not constitute the enticement and alienation essential to a recovery.” Nieberg v. Cohen, 88 Vt. 281, 287, 92 A. 214, 217 (1914). Thus, when the defendant was a woman, she was frequently excused from liability by reason of a remnant of the old procedural disability in the form of judicial stereotyping which viewed men as aggressive and women as passive.
During the 1930s, there was widespread discussion regarding the so-called “heart balm” actions, which included breach of promise to marry, alienation of affections, seduction and criminal conversation. The abolition of these actions became a “cause celebre” in many states. As noted in the majority opinion, a majority of jurisdictions has eliminated the actions by statute or judicial decision. It was widely felt that such suits served no constructive purpose and, in fact, were vehicles for blackmail, extortion or coerced marriages. Although the majority opinion finds it “noteworthy” that research uncovers only one case in which there was evidence of collusion and extortion, one would not realistically expect reported cases to reveal this sort of abuse. Frequently, the threat of filing such a suit would suffice to extract payment from a potential defendant. The instant case would not be before us now if the defendant had paid the proposed $5,000 “settlement” to this plaintiff, whose wife, often beaten and abused, left him by her own free will and choice. It is no answer to claim that groundless or collusive suits may be countered by actions for abuse of process or malicious prosecution. Even setting aside the burden and difficulty of bringing such suits successfully, that argument suggests that there is some point in locking the barn door after the horses are out. It is true, as the majority opinion points out, that there are other causes of action where the parties’ private lives are displayed for public view, and that this aspect of such actions alone is not a sufficient basis for their demise. However, in child custody cases, the best interests of children are felt to counterbalance the sacrifice of parental privacy and dignity, and in defamation cases it is the plaintiff himself who puts his reputation on the line in order to defend it. In a cause of action for alienation of affections, the plaintiff assaults the privacy and reputation of the defendant for no justici-ably defendable purpose.
It is for this reason that I strongly urge the abolition of the cause of action for alienation of affections: this is an action without legal content, signifying nothing but the desire to wring money and revenge from the pain of a failed relationship. The old common law cause of action had real content in the days when the husband had a legally recognized right to his wife’s services. Although we now find the concept repugnant, in the past those legal rights accurately reflected the order and concen-sus of society regarding the status of married persons. In that society, it was logical that a court could find a third party responsible for damage to the husband’s marital *1228rights because the wife had no legally recognized existence apart from her husband, and was generally considered more passive and persuadable by nature. Those days and those rights have passed and this cause of action should be gone with them.
The modern action for alienation of affections has become an action for interference with the mental and emotional attitude of one spouse toward the other. See, e.g., Wyman v. Wallace, 94 Wash.2d 99, 615 P.2d 452 (1980); Prosser, supra, at 876. The majority opinion posits no basis in statute or common law to support such an action. The argument is made that “[t]he marital relationship is entitled to no less protection than” other relational interests, referring to causes of action for loss of prospective economic relations, interference with a contractual relation and wrongful death. However, this analogy fails to recognize inherent differences between the marital relationship and other types of relationships. The relationship between married people does not resemble that between parties who undertake a commercial transaction based on pecuniary interests. In the usual contractual setting, the times at which the contract will begin and end and expectations for performance are identified and limited by the parties themselves. If the parties have dealt at arm’s length, and there have been consideration and a meeting of minds, the law will both enforce the contract and protect its performance from third party interference. Our legal system is capable of this task because the obligations and the adequacy of their performance may be ascertained with a reasonable degree of accuracy. Therefore, if A is damaged in his contractual relationship with B, A has a cause of action against B if B has breached, or against C if C has wrongfully interfered with A’s or B’s performance, or against B and C if together they have damaged A. See, e.g., Bunnell v. Bills, 13 Utah 2d 83, 368 P.2d 597 (1962). It should be noted that if C interferes with the performance of the contract between A and B without their cooperation, either A or B could have a cause of action against C.
The relationship between a husband and wife bears no resemblance to the contractual paradigm which is the legal basis for loss of prospective economic relations and interference with a contractual relationship. Although we speak of the marriage “contract,” it has been centuries since marriage has involved true contract principles in Western cultures. The purposes of marriage are not pecuniary. In our society, it is now widely accepted that men and women enter marriage to seek personal fulfillment and happiness. See e.g., Schultz, supra, 70 Cal.L.Rev. at 250-51. Furthermore, unlike the parties to a contract, parties who wish to marry do not make their own law. The state, not the parties, controls who may marry, what procedure must be followed, and how and why the marriage may be terminated. In Utah, each spouse is required to support the other financially when necessary, see U.C.A., 1953, §§ 78-45-3 & -4, and neither may recover for loss of consortium when the spouse is injured by another. See U.C.A., 1953, § 30-2-4; Tjas v. Proctor, Utah, 591 P.2d 438 (1979). However, the statutes are silent regarding additional legal obligations of one spouse to the other. Our legislature has not seen fit to bestow a legal right on either partner to any quantum of love, devotion, companionship or commitment from the other. Neither has our legislature prescribed how long a neglected spouse must hope, how long a bored spouse must be patient, or how long an abused spouse must endure. Possibly, our legislature recognizes that commitment to the married state must be generated by the individual and cannot be enforced by law. Therefore, a person has no action against his spouse in law or equity for insufficient love and affection, for emotional neglect or even for abuse, apart from the criminal law. Where the State has mandated no condition which the married parties must satisfy, the law will give no cause of action for “breach ” but only specific grounds for divorce. This is in accord with the longstanding “hands-off” policy in the law regarding interference with matters between husband and wife. See, e.g., Schultz, supra, 70 Cal.L.Rev. at 232-34.
*1229Therefore, in our society, which recognizes husbands and wives as separate individuals, which recognizes that devotion and commitment are personal and perhaps moral obligations but not legal obligations, which refuses to recognize a cause of action by one spouse against the other for failure to love, there is no ground in law or logic for recognizing a cause of action by one spouse against a third party to whom the other spouse has voluntarily transferred his affections. The comparison of the action for alienation of affections to actions protecting contractual relationships is superficial and misleading.
A similar point was made by the North Carolina Supreme Court in a suit brought by some children for alienation of the affection of their mother. The court noted that the mother’s love and devotion were “matters within her keeping. The measure of their contribution is controlled by her willingness and capacity.” Henson v. Thomas, 231 N.C. 173, 175, 56 S.E.2d 432, 434 (1949). The court continued:
Since the mother, who is a free agent, committed no legal wrong for which redress may be had in a court of law, it cannot be said that the defendant, who allegedly induced her to be remiss in her domestic duties, incurred any greater liability than the law attaches to her act.
To hold otherwise would mean that every time a person persuades or induces a mother to engage in other activities to such an extent as to cause her to neglect her children, he commits a tort for which he may be compelled to respond in damages.
Id. (emphasis added). The majority opinion declares that “a defendant is properly chargeable with the effect of mere acquiescence in the overtures of the alienated spouse where the defendant knows or has reason to know that such acquiescence will damage the marital relationship.” This will surely be construed to mean that any person who acquiesces in the advances of another, whom he knows to be married at the time, may be held accountable at law for the subsequent failure of the marriage. There is no basis in law for our courts to make such a judgment. Accountability for this type of relationship is better left to courts competent to render moral, rather than legal, judgments. If the law is to give a remedy against third parties who thus “intrude” into a marriage with harmful effect, we may next see a cause of action against demanding employers, distributors of lascivious movies and books, or even the producers of Monday night football, all of which damage many marriage relationships.
It should be noted that the comparison of the action for alienation of affections with recovery for loss of consortium in a wrongful death action is equally superficial. In a wrongful death action, the loss of consortium, i.e., loss of love, affection and society, is simply one way to measure the immeasurable: one value of a life is the ability to form relationships, and to give and receive affection. There is ample basis in statutory and common law for the protection of life. In an action for alienation of affection, the loss of love and affection is the loss of the relationship itself. As already discussed, neither statutory nor common law imposes any obligation on married persons to maintain love or affection for each other. There is no legal basis for one spouse to sue the other or a third party for the failure of the relationship. The comparison with a wrongful death action is invalid.
No one can seriously argue that a husband or wife, even in a troubled marriage, is helpless in the face of temptation. If a spouse is pursued by an aggressive third party, as postulated by the majority opinion, and rejects those advances to no avail, he or she can obtain an injunction against harassment, as did the husband in Webber v. Gray, 228 Ark. 289, 307 S.W.2d 80 (1957). The action lies with the. pursued or annoyed husband or wife, however, not with the spouse for an injury to a legal right. If the husband or wife does not reject those advances, the betrayal is by the participating spouse against whom the law grants no remedy based on the marital relationship, save divorce. Perhaps the individual whose spouse has left him may have an action for intentional infliction of emotional distress *1230against that spouse or against the spouse and the third party. See Stoker v. Stoker, Utah, 616 P.2d 590 (1980) (confirming wife’s right to an action against her husband for the intentional infliction of personal injuries). If the husband and wife have contracted with each other regarding specific marital obligations in addition to those imposed by law, perhaps a remedy for breach of that agreement may be sought by the party wronged. In either case, such an action would be brought as any tort or contract action and would not be derived from the marriage relationship itself as alienation of affections purports to be.
Devoid of any real basis in law, the action for alienation of affections is frequently upheld instead by moralizing:
The injury for which it was recovered is one of the grossest which can be inflicted upon the husband, and the person who perpetuates it knows it is an offense of the most aggravated character; ....
Tinker v. Colwell, supra, 193 U.S. at 489-90, 24 S.Ct. at 509-10.
Three thousand dollars is a small sum for such a case. A confessed adulterer who has enticed away his neighbor’s wife is in no position to say much about excessive damages.
Sullivan v. Valiquette, supra 66 Colo, at 172, 180 P. at 92.
The grievance is one of a social character, of course ... The incidence is too deep, however, to be ... left to the non-eurial efforts of society itself to correct the antisocial tendencies and activities of its members; the slow-curing and festering wounds which leave cicatricial marks in the wake of the marauder.
Henson v. Thomas, supra, 231 N.C. at 178, 56 S.E.2d at 436 (Seawell, J., dissenting). Often, the moralizing or prejudice operates more subtly. The majority opinion quotes from Heist v. Heist, 46 N.C.App. 521, 265 S.E.2d 434 (1980). In North Carolina, a plaintiff must show that the spouses “were happily married and that a genuine love and affection existed .... ” Id. at 523, 265 S.E.2d at 436. The court in Heist found the defendant liable for the failure of the marriage on the flimsiest of evidence of genuine love and affection, disregarding evidence of longstanding disaffection and minimal tolerance between the husband and wife. As illustrated in Heist and in the instant case, and in every case predicated on alienation of affections, there is an inherent danger that a verdict will rest on the subjective judgment of the factfinder, rather than law. In the present case, the trial judge apparently ignored evidence of the plaintiff’s violent treatment of his wife, and her independent decision to seek out the company of the defendant. At the close of trial, the judge declared:
The Court finds that marriage and family — that marriage is a sacred institution and that anyone who interferes with that should suffer the full consequences of the law and I’m just telling you, Mr. Jacob-sen, at this time that this Court nearly every week is having criminal trials where people steal money from other people and in my opinion you’ve stolen something far more than money, you have interfered with the whole basic fabric of society and, when you tell me it’s a [platonic] relationship, I just say it’s nonsense. I don’t buy it at all and I don’t want you to think I do. I don’t know how they’re going to collect any money judgments that I give against you but they’re certainly going to get one against you and I hope this gets well publicized because I’d like everyone to know that if a case like this comes into my Court, that they can expect to suffer ....
The people of the State of Utah do not need this cause of action. It surely falls among those which do not “necessarily offer effective or efficient means of achieving the public good.” Bok, “A Flawed System,” Harv.Mag. 38, 40 (May-June, 1983). Advocating the reduction of volume and cost of litigation, the author of that article points out that “[b]y complicating the rules and insisting on an adversary process conducted by the parties, judges can undermine justice ... . ” Id. at 42. That is precisely what the majority opinion proposes to do: the final deaththrows of a broken *1231marriage are to be preserved with a more rigorous and technical set of requirements for recovery. Innocent parties must defend themselves, and then assert their right to be free of such actions by suing in separate actions for malicious prosecution or abuse of process. Nowhere does the majority point to a basis in law or a benefit to society to justify such a cost to the parties or to our judicial system.
As the court stated in Henson v. Thomas, supra, “The mutual rights and privileges of home life grow out of the marital status. Such obligations ... are not legal in nature and may not be made the subject of commerce and bartered at the counter.” Id. 231 N.C. at 175, 56 S.E.2d at 433. It is time that we acknowledge the operation of the process spoken of by Justice Holmes whereby the customs and needs which give rise to a rule disappear but the rule remains, justified by some new policy based on new beliefs and customs. Holmes, The Common Law 5 (1881). This old “rule” does not have a basis in today’s beliefs and customs. Its existence now testifies only to the persistence of an old form of action in our common law system and to the understandable but regretable human desire for revenge and a greenback poultice. This was a judicially instituted cause of action and should be judicially extinguished, especially since our legislature has never provided a statutory basis for it. See Wyman v. Wallace, supra. It should not be said of Utah that it is a place
Where juries cast up what a wife is worth,
By laying whate’er sum, in mulct they please on
The lover, who must pay a handsome price,
Because it is a marketable vice.
(Byron, Don Juan, Canto I, lxiv.)