This paper discusses the solutions adopted by Italian law (on which this study is mainly focused) and U.S. law as to the issue of recoverability of non-monetary damages suffered by one spouse for the intentional tortious conduct of the other. These suits are usually raised within the divorce proceeding and are grounded in the Italian law on the breach of conjugal duties.
In Italian law, notwithstanding the absence of specific provisions ruling this issue, and therefore the application of the general provisions on tort law not being barred, there was in the past a sort of immunity of family from the operation of tort law rules, resulting from the almost total absence of lawsuits in this field.
The unfavourable Italian approach towards admitting marital torts had its background in custom, and could be easily explained through the proverb ―you shouldn‘t wash your dirty linen in public.‖
The immunity rule was not only typical to the Italian legal tradition, but was present also in American law. Unlike Italian law, in U.S. the immunity rule was rooted in common law (in accordance with the English legal tradition).
The transformation of the traditional family model occurred in the western world, characterized by a shift from the primacy of the family unit upon the single member to the primary relevance of the individuals within the family, together with a wider recoverability of non-pecuniary losses, paved the way for the acknowledgement of interspousal torts in both the legal systems.
The modern approach to the issue adopted in the Italian legal system will be illustrated mainly through judgments, while in U.S. the overcoming in most states of the traditional immunity rule (occurred through judicial rulings or by legislation) will be explained mainly through references to scholarship.
This survey, rather than suggesting new approaches to interspousal tort liability aims at assessing differences and similarities on the ground of operational rules used in a field—that of family law—which in the past comparative law enquiries did not delve into because of its alleged ‘exceptionalism.‘
Interspousal Claims at the Crossroads of Tort Law and Family Law: The Delicate Balance between Family and Individual,
4 J. Civ. L. Stud.
Available at: https://digitalcommons.law.lsu.edu/jcls/vol4/iss1/5