Inter-spousal immunity

In the United States, the concept of marriage was governed by common law. The law defined; the obligations of the spouses and the does and don’ts in marriage with regard of the spouses as a legal unit. Inter-spouse immunity made it impossible for the wife to do anything legally to her husband. Ranging from suing him for abusing her or their children and participating in a lawsuit against her husband, that is, being a witness in a case involving the spouse and also be sued by her husband. However, in the recent past various states have abolished or made amendments to the law making it possible for the wife to sue the husband or any other similar case therein. (Weisberg, 2008).


The couple had a civil wedding ceremony at Baltimore County, Maryland on August 16, 1968. A one-count complaint from the husband was addressed by the Baltimore court on January 2001. The husband alleged that on three separate instances his spouse filed false criminal charges against him that led to his arrest and incarceration. The wife had made accused his husband of stalking, harassment and violation of a protective order (Barbera, 2002).

In defense, his wife challenged the grounds on which here husband requested the grant of the motion. In addition to that, the wife claimed that they were married at the time and the common law of inter-spouse immunity applied to the case. Subsequently, the couple divorced even before the day the court gave a ruling; in the ruling, the court dismissed the case with a period for amendments (Barbera, 2002).

Following the amendment, the status of the two was rectified and a second count was added. The complaint added that the defendant had filed new claims that accuse him of violating an ex parte order. In the ruling, the court dismissed both counts citing inter-spousal immunity.

To that effect, the appellant challenges the rulings in the court of appeal. In his challenge, the appellant claimed that in the first count the case warranted special treatment and in the second the citation of the inter-spousal immunity did not fit for the appellee and himself were not under the bond of marriage (Barbera, 2002).

Historical background of the immunity

In backbone, the law is based in English common law. Major derivations from the early Roman law and consequently the Bibles’ explanations were made. Upon union, the spouses become on body in spirit and in body. Therefore, the two become one in the concept of the law.

All the rights and the bindings of the law of the law are kept under the husband. Ideally, the wife is believed to be under the protection of the husband. “Coverture” or “spousal unity” theory bestows the couple’s legal identity upon the husband. Being the legal identity, any tort among the spouses would not be possible since the husband legally will be the complaint and the defendant (Kelson, 2008).

Nonetheless, the law was adopted in America and its colonies in the nineteenth century. During the late half of the century, several states passed amendments to the law including property rights and inclusions that a woman in marriage could sue and be sued whether she was married or not. As years went by many states allowed the spouses to act as separate legal entities with emphasis on the women. The law eroded with time and it followed that the states applied the law partially and subsequently abolishment in the twenty first century (Kelson, 2008).

Timeline and situational differences were the main arguments facilitating the changes in the law. Equality in being between the man and wife also played a role in the amending and death of the law in the counties. It was well explained that as much as allowing tort between spouses can lead to sore family ties and relations, the denial of the right would lead to the same. Concerning that, most states preferred to give liberty to both spouses (Kelson, 2008).

Public policy regarding inter-spousal immunity and how they came into play

Use of the inter-spousal immunity encountered challenges and there had to be reasons for maintaining it. Public policies were introduced to support the use of the law. The policies included preservation of marital harmony, prevention of fraud and collusion, difference in state legislatures, barring flood of frivolous claims in courts and exclusion of it as one of the methods of settling injuries among spouses (Blond, 2007).

Ideally, any policy that involves spouses is aimed at preserving marital tranquility. Allowing the spouses to engage in torts was considered as a threat to the relationship that the couple have. Making the two spouses incapable of suing each other evidently reduced the friction between the couple thus instilling harmony. Consideration was granted on grounds of contracts and property claims (Kelson, 2000).

Standardizing the law, difference in the state legislatures was greatly put at heart. Clearly, the law could only be amended by legislature. Courts in the states had formulated policies that in one way or another were intertwined with the common law. The application of the law ultimately changed based on the policies put in place. For example, policies to allow a wife to sue a third party in rights and property cases (Kelson, 2000).

Insurance came into play in the country. Collusion and fraudulent cases had to be considered if the insurance sector was to exist. Examples that were considered included ones in which the spouses would falsify information about an incident. This mainly had to do with the severity of damages caused to get better compensation (Weisberg, 2008).

The judicial system had an overwhelming number of cases. Allowing torts would simply lead to a flood in frivolous claims. According to the proponents of the law, cases that did not necessarily need the courts included spouse torts. Other home-based solutions seemed like the most proper way of solving spouse issues (Kelson, 2000).

Concisely, there are many methods of tackling injury cases between spouses. In argument, denying spouse one method of tackling there problems would not barricade means to getting remedies. Other remedies include divorce or separation of the couple. Alimony would be considered in such cases (Kelson, 2000).

Reasons for abolishing inter-spousal immunity

Keen look into the effects of common law were considered in deciding to abolish the law. Additional burden to the institution of marriage and the lack of proof that the law preserved tranquility in marriage include the arguments considered in abolishment. The marital harmony policy is unpersuasive and artificial. Discord in marriage originates from many things. No further discord was noted in allowing torts.

Inter-spousal immunity as protection against fraud and collusion is a low blow. It contradicts one of the facilitations of the courts: to make it possible for the injured to sue whoever caused harm to him or her. Safeguards exist to prevent fraud cases whether married or not. Any law made is to fit in with the conditions. Inter-spousal immunity law does not fit in the present conditions.

Evidential link between frivolous claims in cases where the law was not used simply gave another reason as to why the law simply did not have a place in the current time. Moreover, denying the spouse a right to seek a civil remedy to his or her marital problem is unfair. Considering the law only gave room for extreme measures like separation and divorce.


Barbera, J. (2002). William E. Bozman v. Nancie L. Bozman (2002) No. 1167: In the court of special appeals of Maryland. Retrieved on July 14th 2010 from

Blond, N. C. (2007). Torts. New York, NY. Aspen Publishers.Kelson, S. (2000). The Doctrine of Inter-spousal Immunity in Utah: Does it still exist? Utah State bar. Retrieved on July 14th, 2010, S. D. (2008). Ellis v. Estate of Ellis: The Unequivocal Death of Inter-spousal Immunity in Utah: Utah State bar. Retrieved on July 14th, 2010, D. K. (2008). Family Law. New York, NY. Aspen Publishers Online.