1. INTRODUCTION

No-fault divorce brought about the loss of legal relevance of many morally reprehensible behaviours within marriage. The limited scope of the remedies provided by family dissolution laws prompted victims to look elsewhere to obtain relief for these wrongs, particularly towards liability in tort. Tort law could, thus, supplement family law to compensate for harm suffered at the hands of the spouse.

In an acclaimed book, Jill Elaine Hasday recently argued that ‘courts should be more receptive to suits seeking redress from deceptive intimates who have caused harm’. Indeed, courts in many jurisdictions are, now and then, called to decide on petitions entailing compensation awards concerning non-criminal yet ‘improper’ behaviour of spouses or partners in intimate relationships: these include whether damages are available to the wife for non-pecuniary loss suffered after discovering the sexual impotence, or the sexual orientation, of her husband; whether one can sue the adulterous spouse for damages after divorcing them (or while divorcing them); which remedy, if any, is to be granted to the man who learns, perhaps after several years, that the child he took to be his own child was another man’s, or the fruit of an undisclosed and secretive artificial reproduction procedure.

These examples, and many others intrinsically related to intimate partners ‘interactions, raise several issues, and need careful consideration of the circumstances of each individual case. Still, all of them trigger fundamental questions about the scope of family law, and the protection of the privacy and autonomy of adults involved in intimate relationships. The special nature of the interests at stake makes it a risky business to say when, and how, partners can be held accountable, and this explains the reluctance to grant tort remedies to redress some intimate wrongs.

2. BEYOND INTERSPOUSAL TORT IMMUNITIES

Dissatisfaction with the current state of affairs is condensed in the statement that intimate partners are treated worse than strangers, because they are not granted the remedies that strangers would be. As Hasday also put it, the judiciary routinely refuses, in practice, ‘to allow deceived intimates to access remedies that are available to redress, deter, and repudiate deception in other contexts’.