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The Legal Right of an Individual to File a Tort Suit against His/Her Own Spouse

Posted by on Jan 30, 2015 in Marriage | 0 comments

It was not until the latter half of the 19th century, when the Married Women’s Property Acts or Married Women’s Acts was passed into law, that some US states began to slowly terminate the common law unity of a husband and a wife and recognize the legal rights of married women, allowing them, henceforth, to contract, hold and defend their property interests and, most importantly, to sue their husband for whatever legal reasons (many other legal rights of married women were, of course, recognized during this time).

Prior to this, the legal existence of women, by virtue of her marriage, was either suspended or consolidated into that of her husband, under whose person she got her identity and the right to perform all other things. Thus, in case someone were to file a lawsuit against her, then it will be her husband who will be the defendant; in the same manner, if she were the one to pursue a legal case against another, then it will be her husband who will act as the plaintiff.

This marital condition, wherein the legal identity of a couple was placed totally in the person of the husband, was called a woman’s “coverture.” And, due to the spousal unity or single legal identity of a husband and wife, the doctrine of interspousal immunity, the common law that forbade spouses from filing tort lawsuits against one another, became to be accepted. Based on this doctrine, a married woman can never sue her husband for reasons of personal injury (resulting from negligence) since it would be absurd for the husband to be both plaintiff and defendant simultaneously; in other words it is unthinkable that a husband would file a personal injury lawsuit against himself.

Between 1920 and 1940 many US courts began the partial abolition of interspousal immunity – a result of the increased and broader reading (and deeper understanding) of the Married Women’s Acts. Despite this bold move initiated by some states, many persevered in recognizing the common law doctrine, rationalizing that: while an interspousal tort lawsuit would certainly only disrupt marital tranquility, immunity will surely preserve marital harmony; spouses may only connive to engage in fraudulent liability insurance claims; instead of filing a tort suit, an injured spouse should rather pursue divorce or a criminal charge as alternative remedy.

Though these arguments prevailed in many courts in the past, many also began abandoning these eventually, so that by 1970 majority of US states began allowing intentional tort suits which pit spouses against each other. While the rule of immunity may still be observed in specific situations, its abolition in the area of tortuous suits is already total. To date, Louisiana is the only state that has retained the doctrine of interspousal tort immunity.

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