A tort is an accidental or intentional wrongful act that injures a person. A marital or matrimonial Tort is a wrongful act inflicted by one spouse upon the other during the marriage. Spousal partners are quite capable of obnoxious conduct towards one another, both during and after the breakdown of a relationship.
Historically, a spouse could not sue his or her spouse for personal injury. The spouses were considered to have one single identity. Since they did not have separate identity, they could not sue each other. A tortfeasor enjoyed liability because of his or her marital relationship to the victim or the injured party.
There is now an emerging trend in family law, where a spouse can sue the other in domestic or matrimonial tort and obtain financial compensation. A married woman can make a tort claim against her husband and vice versa. Interspousal immunity is no longer a bar to a matrimonial tort claim.
Claims for abuse suffered during the marital relationship is an emerging or developing area of family law.
Domestic torts committed during the marriage constitute an independent cause of action, separate and apart from the usual relief in a divorce proceeding. A tort claim for damages against a spouse may be included in a divorce application. All tort claims must be resolved at the same time the family law claims are resolved.
The limitation period for these claims is 2 years from the date the claim was discovered. If you believe that your spouse may be liable to you for his or her past and present actions, don’t wait until the divorce is over. The marital tort must be joined with the divorce application or you could lose your right to bring the tort claim. The evidence in the divorce case can also be used in the tort claim.
Damages for torts have been awarded by the Courts in addition to claims made under the Family Law Act or the Divorce Act. There are now remedies available for litigants whose spouses have intentionally subjected them to emotional, physical and financial harm.
Unless the tortfeasor in matrimonial proceeding, has insurance to pay for the damages awarded, the financial compensation usually comes out of his share of the property division.
Some examples of matrimonial tort claims that could be brought include:
a) Physical Assault and Battery/Domestic Abuse
b) Intentional Infliction of Mental and Emotional Distress ( negligent and/or intentional)
c) Marital Rape
d) False Imprisonment
e) Fraudulent Misrepresentation ( eg fraudulent inducement to marry; or false representation by one spouse induces the other to take some contractual or commercial action that resulted in financial loss)
f) Malicious Prosecution ( one party set in motion false criminal charges that led to unsuccessful criminal prosecution that was commenced without reasonable cause eg a wife’s false allegation that the husband had sexually assaulted his daughters led to unfounded prosecution of the husband)
g) Defamation
h) Intimidation ( eg threats made by one spouse to prevent the other spouse from proceeding with case; threat to disclose some despicable act from one’s past etc)
i) Negligent Infection with Sexually Transmitted Disease by one spouse
j) Invasion of Privacy ( eg wiretapping, illegal interception of communications eg. Telephone wiretaps, eavesdropping on telephone communications, downloading spouse’s emails, obtaining spouse’s conversations in internet chat rooms, surveillance etc)
Most divorces are settled by the parties signing a separation agreement or minutes of settlement, which usually has a waiver. By signing a settlement agreement with a waiver, the victim of the alleged tort could be signing away his or her right to proceed with a tort claim arising out the marriage.
At Manafa Law Office, we practice at the cutting edge of Family Law and we are at the forefront of emerging tort claims in Matrimonial litigation. If you are going through a divorce and you believe you have a tort claim against your spouse, please contact us for consultation. We represent either the wife or the husband. We can defend or challenge a matrimonial tort claim. At Manafa Law Office, we will help you navigate the current matrimonial torts landscape.
