Last date edited 03/31/08
 

Interspousal Immunity: History in Maryland

In Bozman v. Bozman, 376 Md. 461 (2003), the Court of Appeals held that "we abrogate the interspousal immunity rule, a vestige of the past, whose time has come and gone, as to all cases alleging an intentional tort." Bozman at 496.

Origin - The doctrine of interspousal immunity is based in common law and emphasizes the wife's inability to sue her husband. Lusby citing 1 W. Blackstone, Commentaries at 442, 443 gave the doctrine's rationale:

"By marriage, the husband and wife are one person in law: that is, the very
being or legal existence of the woman is suspended during the marriage,
or at least is incorporated and consolidated into that of the husband: under
whose wing, protection, and cover, she performs everything; and is therefore
called in our law-french a feme-covert, foemina viro co-operta; is said to be
covert-baron, or under the protection and influence of her husband, her baron,
or lord; and her condition during her marriage is called her coverture. Upon
this principle, of a union of person in husband and wife, depend almost all the
legal rights, duties, and disabilities, that either of them acquire by the marriage."

He adds, in discussing the consequences of this union of husband and wife,
"If the wife be injured in her person or her property, she can bring no action for
redress without her husband's concurrence, and in his name, as well as her own:
neither can she be sued without making the husband a defendant."

[However], "our laws pertaining to the rights of married women were completely revised in 1898 with the enactment of the Married Woman's Act." Bozman at 471.

The Act has been codified in Md. Family Code Ann. §§ 4-203 - 4-204 which state, in part, that "a married woman, has the right to hold her property for her separate use, sue on a contract made with her husband, and sue for any tort committed against her." Additionally, the Family Law Article allows the husband to "sue his wife on a contract made with her."

However, the Courts did not change the common law doctrine which was a product of judicial decision. "The review of our cases revealed consistent and uniform application of the doctrine, some questioning of the doctrine's underpinnings …" Bozman at 458 citing Lusby at 352.

"On the one hand, as a result of this Court's Lusby decision, a wife, for example, may sue her husband for an intentional tort committed against her, and recover, provided she can prove that the tort committed against her by her husband was both intentional and sufficiently "outrageous" as to meet the standard established by Lusby. On the other hand, perhaps the polar opposite situation, this Court, by abrogating, in Bobliz, the interspousal immunity doctrine in negligence cases, has permitted a spouse injured as a result of the negligence of his or her spouse to now sue that spouse. There is, however, a broad spectrum of tort actions between Lusby and Boblitz situations…" The Bozman court had to decide "whether these torts, and the conduct that characterizes them … should be subject to the immunity defense or, whether, on the contrary, the time has come to bridge that gap." Bozman at 486.

Summary of Previous Maryland Cases
In Bozman v. Bozman, 376 Md. 461 (2003), the Court of Appeals had to decide whether the interspousal immunity doctrine should be abrogated. The Court of Appeals held that "we abrogate the interspousal immunity rule, a vestige of the past, whose time has come and gone, as to all cases alleging an intentional tort." Bozman at 496.The Petitioner husband was not barred from proceeding in a malicious prosecution case against his former wife for acts that occurred before the divorce. The husband alleged that the wife had filed charges against him for violating a protective order in retaliation for his initiating divorce proceedings and his unwillingness to make concessions in those proceedings.  
 

The interspousal immunity rule is based on common law holdings that by marriage, a husband and wife become one person in law. Boblitz v. Boblitz, 296 Md. 242, 243, 462 A.2d 506, 507 (1983).  The rule has been abrogated in cases sounding in negligence, Id. at 275, 522.  In 1978, the Court of Appeals ruled that under certain circumstances, Maryland law permits interspousal tort claims. Lusby v. Lusby 283 Md. 334 (1978). In 1984, the Court of Special Appeals interpreted the Lusby decision as meaning the following: “that, on a case by case basis, the intentional infliction of a tort, involving property or personal injury, may give rise to a cause of action between spouses.” Bender v. Bender 57 Md. App. 593 (1984).