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Georgia’s Intraspousal Tort Immunity Doctrine (In General)

by merlin on September 21st, 2012
  • Sumo

Section 19-3-8 of the Georgia Code states that “Interspousal tort immunity, as it existed immediately prior to July 1, 1983, shall continue to exist on and after July 1, 1983.”

This idea of immunity for a spouse from a tort action by the other spouse was defined well in Gates v. Gates, 277 Ga. 175, 587 S.E.2d 32, 03 FCDR 2981
(Ga. 2003)(quoting Wallach v. Wallach, 94 Ga.App. 576, 578, 95 S.E.2d 750 (Ga. Ct. App. 1956)):

“[M]arriage extinguishes antenuptial rights of action between the husband and the wife, and after marriage the wife cannot maintain an action against her husband based on a tortious injury to her person, though committed prior to coverture.”

It is unaffected by the mere fact of a divorce between the couple.  “At common law and in the absence of constitutional or statutory provision affecting the matter, after divorce one of the former spouses cannot maintain an action against the other for a personal tort committed during coverture, nor can an action be maintained for a personal tort committed before marriage where the right of action therefor was extinguished by the marriage.”  Id.  Fortunately, that is not the end of the story.

The doctrine is there for public policy reasons.  “The traditional policy reasons favoring the retention of the common law immunity rule include preservation of marital harmony and protection against the possibility of collusive or friendly lawsuits between spouses.”  Trust Co. Bank v. Thornton, 186 Ga.App. 706, 368 S.E.2d 158 (Ga. Ct. App. 1988).  However, that case – decided over two decades ago, by the way – went on to state that “[t]he courts have held that the policy concerns upon which interspousal immunity is founded may not be present where either an extended separation or an act of violence show there is no “marital harmony” remaining to protect.”  In fact, that case was based on the idea that it had become possible under the law on the individual facts of a case to sue a spouse, and interspousal immunity was not an automatic complete defense, but instead was a case-by-case consideration.  Section 19-3-10 of the Georgia Code provides that “[a] married person may make contracts with other persons; but, when a transaction between a husband and wife is attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair. If a husband or a wife has a separate estate and purchases property from persons other than his or her spouse, the onus shall be upon a creditor levying on such property as the property of the other spouse to show fraud or to show that the husband or wife did not have the means with which to purchase the property.”

The big fear appears to be the idea that “marital harmony” would be lost if the spouses, or ex-spouses, were able to sue each other, and that there might be collusion between the two (basically, fraud on the rest of the world).  In the Gates case, the parents of one spouse were suing the estate of the other spouse on a wrongful death claim, and the Court was persuaded by the fact that there was no danger of marital harmony being destroyed by the suit, since they were both dead.  Further, there was no danger of collusion because there was no need to support a survivor – this was the parents and the estate of one spouse suing the estate of the other.  The facts of every case will be different, presumably.  In Bearden v. Bearden, 231 Ga.App. 182, 184, 499 S.E.2d 359, decided ten years later in 1998, the Court discussed the same policy reasons for the doctrine, but said that “[t]his doctrine may be abrogated where there is no marital harmony or unity to preserve and where there is no possibility of collusion.”  In that case, there were Affidavits submitted by everyone involved (a husband, an ex-wife, and various family members) that showed a ten-year separation between them, with only sporadic events that might be deemed “reconciliation”.  The Court held that the Affidavits formed an issue that would let the matter survive the husband’s summary judgment action and submit the matter to the jury.  Again, this was because there was evidence that there was no collusion at play.

 

In other words, a Court cannot simply apply the doctrine automatically, when there is a factual issue involved and no marital harmony to preserve.  This is an evolving issue in Georgia jurisprudence; expect it to develop further as equality of the genders finally becomes a reality in this State.

 

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