Male Violence, Marital Unity, and the History of the Interspousal Tort Immunity

Abstract

The interspousal tort immunity has been understood as a common law rule that was codified in the English Married Women's Property Act, 1882. It was explained as a necessary consequence of the wife's coverture and was justified by the doctrine of marital unity. This conventional account mischaracterizes the complexities underlying the development of the immunity and the reasons for its reformulation in the nineteenth century. This article traces a different trajectory, showing that the interspousal tort immunity was not articulated until Phillips v Barnet in 1876, and examining the way it came into being as a result of the reforms to divorce law and to the property rules of coverture. Although already implicit in the governing principles of the pre-reform law, the nineteenth-century expression of the rule concerning interspousal tort immunity was a product of the contemporary reforms to coverture at least as much as it was a product of coverture itself.