by Dr Jinal Dadiya, Lecturer in Law, Goldsmiths University of London
Introduction
There has been a recent rise in former romantic partners instituting tortious actions against one another for events which took place within the course of their romantic relationships. This is the case both in the UK,[1] and in other common law jurisdictions.[2] In the last year, English courts have seen at least two influential personalities being sued by their romantic partners in tort.[3] Currently, the law of obligations tries to resolve such disputes by applying general standards of private law, without however recognising special duties or exceptions on account of the parties’ romantic involvement. This reticence has been rationalised through appeals to discretion, emotional complexity, the public-private divide, and the perceived moral volatility of intimacy.[4] As courts and legislatures confront coercive control, emotional manipulation, and technologically mediated abuse, an important jurisprudential reconsideration is underway: what constitutes a civil wrong in the context of romantic relationships, and how might tort law be recalibrated to attend to it? In this blog entry, I argue that normative answers may be found in legal histories of heartbreak.
Recent work by Hasday,[5] Simmonds[6] and Kennedy,[7] shows that the law of obligations has not always been divorced from the dynamics of a romantic relationship. Their work reveals how so-called ‘heartbalm’ actions for seduction, criminal conversation (which was the legal term for adultery), alienation of affection, and breach of promise of marriage grew and evolved in the social mileiu of the 19th-century . While heartbalm actions had become outdated by the 20th-century, and were eventually abolished,[8] I argue in this entry that a close read of the heartbalm case law is normatively generative in ways that are relevant even today. They show that 19th-century courts developed duties of responsible behaviour in romantic relationships and evolved a working idea of ‘romantic injustice’, which was both contextual as well as principled. Among them were duties of not ‘using’ one’s romantic partner to their detriment for financial, sexual, or reputational gain; the duty of responsible and timely decoupling; the duty to support the claimant’s rehabilitation; and the duty to compensate ‘pure’ emotional injury. Remedies in case of breach of such duties could include court-mandated apologies in addition to, and sometimes as an alternative to, compensation, pre-empting contemporary conversations about restorative justice and the significance of apologies for civil wrongs.
This blog entry begins with a review of recent tortious litigation between former romantic partners to highlight the strengths and weaknesses of the current approach to such cases, before signposting a way forward that draws from 19th-century legal histories of heartbreak. I argue that the principles evolved by the 19th-century romantic torts of breach of promise to marry and seduction can give us normative language to articulate what it means to behave unfairly in a romantic context, and how experiences of what has been called ‘romantic partner betrayal’ arising from such conduct should be addressed by the law.[9]
The proceedings in FGX v Gaunt (2023)
In FGX v Gaunt (2023),[10] the claimant’s experience of romantic partner betrayal was ancillary to the tort she complained of, that is the misuse of private information (MPI) as well the intentional infliction of emotional distress (IIED), but was nonetheless very much at its emotional core. The defendant, who was the claimant’s romantic partner, had, with the help of hidden cameras, filmed intimate videos of the claimaint in various stages of undress, in the shower, in bed, and while cleaning. He then published them on pornographic portals, with a photo of the claimant’s face, which made her easily identifiable. This resulted in severe psychological impact on the claimant, including a persistent form of PTSD, which made it difficult for her to trust again and enter into new romantic relationships.[11]
MPI is one of few tortious avenues romantic partners have against each other in case of breaches of legal or moral duties during romantic relationships. It focuses on information privacy, and relates closely to the protection of information shared within relationships of confidence that one could or should reasonably expect to be kept private.[12] The action applies to a range of different types of relationships, but has been applied also to romantic relationships and been interpreted to include the protection of sexual information.[13] The wrong addressed by the action is the leakage of personal information. When this information takes the form of personal images, the disclosure is also criminalized by the Online Safety Act 2023.[14] While this enables claimants to receive compensation for breaches of their privacy, it does not however respond directly to the feelings of betrayal that underlie many instances of such misuse in a romantic context. In fact, often a strong argument against airing one’s romantic dirty laundry in a public court is precisely that it results in a breach of privacy.[15] To complain of romantic partner betrayal thus runs against the principles that the MPI tort aims to protect.
With the MPI tort being insufficient to address the full nature of damage caused, the question that arises is whether the IIED tort can help address the gap. Should the abuse of trust involved in a romantic partner betrayal count as a special type of emotional distress? The claimant in FGX v Gaunt had clearly suffered overwhelming emotional injuries on account of the defendant’s behaviour. Her doctors gave evidence that her ability to love and to trust again in a romantic context had been significantly compromised, and this was a harm specifically attributable to the betrayal by her partner. The harm was not simply that a confidential relationship had been breached and her privacy violated, but that this had been done by her romantic partner. Her heartbreak manifested as a specific type of PTSD, whereas public sharing of her intimate images took on the form of a more general type of PTSD that anyone might experience if their privacy was breached. It wasn’t just that her private photos were now public, but also that they had been shared by a trusted romantic partner who had betrayed her. Thornton J nonetheless reasoned that the two types of PTSDs should not be treated separately, and she considered them together while determining the damages. This meant that the relationally experienced part of her PTSD was accorded less importance than it would otherwise have been. Finding that the defendant was liable for both the MPI and IIED torts, the judge assessed the quantum of damages for both together. She noted that while the two causes of action were separate, the facts underlying them, particularly the claimant’s PTSD diagnosis, overlapped. As a result, a reasonable relationship had to be maintained between the two causes of action, despite there being no exact correlation between the two. Thornton J’s approach to maintaining that reasonable relationship required that the claimant’s PTSD should not be ‘double counted’ for each cause of action. The judge applied the Judicial College’s Guidelines from 2022 and concluded that the claimant had suffered a trauma of the moderate severe level, and damages were therefore calibrated to this level of trauma. Accordingly, Thornton J. awarded a sum of £60,000 as general damages for the psychological impact that the defendant’s conduct had caused the claimant. The claimant was also awarded an amount of £37,042 as special damages, which included treatment costs and the cost of removal of images from the internet. Although the FGX decision shows us that IIED tort can remedy hurt arising from interpersonal contexts, it does not create space to acknowledge that such injury can be worse, or more serious, when arising from a relationship of love or trust. In fact no separate damages were awarded.
Trauma that slips through the net
While in FGX the defendant was liable for both the MPI and IIED torts, what slipped through the analysis in FGX is the relational nature of the trauma sustained when a romantic partner harms another. The claimant in FGX spoke about how the romantic context made the harm substantively different, or at least worse, than it would have been coming from a stranger. It wasn’t only that their coupledom gave the defendant access to her photographs, he had also betrayed the loving trust that she had placed in him. According to the statement of the claimant, in a former criminal complaint for voyeurism against the same defendant, she was most aggrieved by the betrayal of someone who pretended to love and care for her. This, as we saw, had resulted in her developing trust issues, finding relationships difficult, and an inability to enjoy social life. In her findings, Thornton J made mention of this loss of trust in people, but treated this as a part and symptom of her PTSD, which included the major injury of having her images go into circulation. Also, the relational aspect of the harm was not acknowledged as an independently significant type of injury.
The claimant’s statements reflect how contemporary psychiatric and psychological studies characterise romantic partner betrayal. Following Jennifer Freyd’s foundational formulation of betrayal trauma, there have been a number of qualitative and empirical studies examining romantic partner betrayal.[16] They demonstrate that romantic partner betrayal has uniquely destabilising effects, because it involves violation by those who are supposed to provide safety, attachment, and care. There are high degrees of associations between betrayal trauma exposure and psychological and physical injury as well as substance-use problems.[17] At the core of betrayal trauma are severely distressing, trust-violating experiences, as are their mental health sequelae. This should be acknowledged by the courts and reflected in the remedies.
One way forward: Drawing from legal histories of heartbreak
As I mentioned earlier, while private law largely stays out of the dynamics of interpersonal romantic relationships today, this was not always the case. The misuse of confidential information tort, which has now given way to the MPI tort, had initially developed to recognise that the breach of confidential information shared within relationships of trust and confidence could lead to significant injury. By contrast, more recent articulations of the MPI tort are less attuned to the relational harms caused by information sharing and breach of trust.
Relational hurt was historically considered the domain of tort law, as part of the four ‘heartbalm’ torts available to injured lovers, that is for seduction, criminal conversation, alienation of affection, and breach of promise of marriage. These torts were of course structured in ways that reflected gendered social and economic arrangements of the day. However, underlying their logic was the idea that serious romantic partners owed certain special duties to one another, which, when breached, could be viewed as kinds of tortious wrongdoing. This was especially important when the wrongdoing caused significant harm to the other partner, such as the disruption of their life plans and opportunities. English, Scottish, Irish, and other common law courts had worked out core duties, such as the duty not to ‘use’ one’s romantic partner to their detriment for financial, sexual, and reputational gain,[18] the duty of timely and responsible decoupling,[19] the duty to support the claimant’s rehabilitation, and the duty to compensate ‘pure’ emotional injury. Such duties guided principled understandings of what it meant to behave reasonably in romantic relationships. Harm incurred as a consequence of unreasonable romantic conduct was considered actionable damage to be compensated by pecuniary awards, even when purely emotional in nature. Breaches could be remedied through public apology and payment of compensation.[20] It was understood that the hurt arising from romantic partner betrayal was of a special legal category. Contemporary courts should draw on the doctrinal histories of these actions, analogising the reasoning followed by judges deciding them, when attending to newer types of claims arising from romantic betrayal. These of course, would have to be adjusted for context, but the principles underlying past decisions are still applicable to cases today.
My preliminary research on 19th-century heartbalm cases shows that courts had evolved the working idea of a ‘romantic injustice’, which they refined through the heartbalm case law.[21] The specific actions for heartbalm, such as ‘seduction’, became placeholders to address such romantic injustices, which could include elements of breach of consent, abuse of power, deception, and other unfair interpersonal conduct such as not enabling closure. Judges communicated the wrongfulness of seduction in patriarchal terms, but also by reflecting on normative ideas that influenced heartbalm litigation, such as those of autonomy, child-protection, reasonability, and risk-aversion. England and Wales abolished heartbalm torts in 1970, largely because of a fear of the actions being abused by blackmailers. In Scotland, the actions became obsolete by the early 20th century, and were later abolished by the Law Reform (Husband and Wife) (Scotland) Act 1984. This clipped prematurely any modern judicial discussion of what it means for romantic partners to behave wrongfully towards one another, and consequent questions on how it should matter to the law.
Had the law continued to evolve in this direction, it is possible that FGX, and other cases like it, could have resulted in the award of separate damages for abuse of romantic trust and jeopardy to claimants’ future romantic lives. This aspect of trauma would be specific to IIED claims, and not the MPI action, and thereby circumventing the double counting problem that Thornton J. encountered when computing general damages for both causes of action. Furthermore, courts could have considered restorative remedies, such as apologies, although Gaunt’s non-participation in this particular case would not have rendered such an option feasible.
Today, as courts are faced with a fresh spate of litigation between romantic partners, it will be helpful to reflect on this legal history of taking heartbreak seriously. Claimants would benefit from courts attending to the emotional distresses of heartbreak, even when it is not identified as a special manifestation of a generalized psychiatric diagnosis, as a specific type of legally relevant harm.
[1] Examples include Hey v Cresswell, [2023] EWHC 882 (KB), and Drouet v Milligan, 2024 WL 01181462.
[2] Examples from outside the UK include Real Housewives star Britani Bateman claims ex-husband was abusive and demanded sex, lawsuit alleges (Daily Mail, 21 September 2025) https://www.dailymail.co.uk/tvshowbiz/article-13953055/real-housewives-Britani-Bateman-ex-husband-abusive-demanded-sex-lawsuit.html accessed 22 September 2025, Net-a-Porter founder Natalie Massenet sues ex over ‘prostitutes, drugs, and affairs’ (The Standard, 22 August 2025) https://www.standard.co.uk/news/uk/net-a-porter-founder-natalie-massenet-erik-torstensson-lawsuit-b1244071.html accessed 22 September 2025.
[3] Ex-lover sues Boohoo founder over £20m stake in new venture (The Times, 20 September 2025) https://www.thetimes.com/uk/society/article/ex-lover-sues-boohoo-founder-over-20m-stake-in-new-venture-hhspf8jgh accessed 22 September 2025,
[4] C Barry and E McTernan, ‘A Puzzle of Enforceability: Why Do Moral Duties Differ in Their Enforceability?’ (2021) 18 Journal of Moral Philosophy 229.
[5] J E Hasday, Intimate Lies and the Law (2019).
[6] A Simmonds, Courting: An Intimate History of Love and the Law (2023).
[7] C Kennedy, Inducing Intimacy: Deception, Consent and the Law (2024).
[8] Law Reform (Miscellaneous Provisions) Act 1970 (England and Wales) Law Reform (Husband and Wife) (Scotland) Act 1984.
[9] For the term, see JJ Freyd, AP DePrince, and D Gleaves, ‘The state of betrayal trauma theory: Reply to McNally’ (2007) 15 Memory 295.
[10] [2023] EWHC 419 (KB).
[11] Based on the claimant’s statement in para 22, [2023] EWHC 419 (KB).
[12] Campbell v MGN [2004] UKHL 22.
[13] For example, Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB).
[14] Online Safety Act 2023, s 188, inserting s 66B into the Sexual Offences Act 2003.
R Most recently in HXZ v NMX [2025] EWHC 697 (KB).
[16] M Lonergan, A Brunet et al, ‘Is romantic partner betrayal a form of traumatic experience’ (2021) 37(1) Stress Health 19.
[17] RE Goldsmith, JJ Freyd, and AP DePrince, ‘Betrayal Trauma: Associations with psychological and physical symptoms in young adults (2011) 27(3) Journal of Interpersonal Violence 547.
[18] Hall v White, (1859) 120 E.R. 694.
[19] For instance, in A Hall Breach of Promise Case (Dundee Courier, 26 August 1879).
[20] For instance, in £1,000 and apology for a breach of promise (Lancaster Gazette, 7 July 1880).
[21] For instance, J Dadiya, ‘How the law soothed broken hearts in 19th-century America’ (Psyche, 4 November 2024) <https://psyche.co/ideas/how-the-law-soothed-broken-hearts-in-19th-century-america> accessed 3 December 2025.
