Interspousal torts in the Maltese legal system

Abstract

Tort law is nowadays applied between spouses in a number of jurisdictions for the various wrongs that can arise within marriage. Yet traditionally, tort law was considered as a separate area of law that could not apply within the family. Spouses could not sue each other in Common Law jurisdictions since they were considered as one entity. Conversely, the social mores of society in certain Civil law jurisdictions meant that no lawsuits were ever filed between spouses. Analogously, in Malta, spouses do not resort to this remedy to recover damages for personal injury claims. This thesis aims to address whether interspousal tortious actions should be introduced in Malta and if so how this can take place. Various arguments have been raised against these actions given the traditional aims of safeguarding the matrimonial bond. It was held that these would burden the courts with a number of frivolous claims being filed. After analysing the objections raised against these suits, this thesis concludes that these arguments would no longer be in line with modern social realities. All individuals should have equal rights irrespective of their marital status. Neverthless, not all acts give rise to tortious compensation but only those that are not part of the daily life of marriage. A threshold of tolerance therefore applies. By exploring the way that these actions have been applied and interpreted in foreign jurisdictions, this thesis will consider whether these can be filed in Malta. It appears that no interspousal immunity exists and no obstacles bar these claims. It concludes that neither family nor criminal law remedies provide compensation. Whilst certain property matters are being considered, a lacuna exists for personal injury claims. The research undertaken revealed that the existing general rules of tort can be applied between spouses. A new legislative basis for interspousal tortious actions is recommended in order for spouses to be able to file for damages in the separation lawsuit.