Georgia still bars most personal injury suits between spouses, and the rule reaches farther back in time than people expect.
The Statute Froze the Common Law
OCGA 19-3-8 provides that “[i]nterspousal tort immunity, as it existed immediately prior to July 1, 1983, shall continue to exist on and after July 1, 1983.” The Supreme Court of Georgia reads that as preserving the common law rule: “marriage extinguishes antenuptial rights of action between the husband and the wife, and after marriage the wife cannot maintain an action against her husband based on a tortious injury to her person, though committed prior to coverture.” Gates v. Gates, 277 Ga. 175 (2003).
Marrying the Defendant Ends the Claim
Gates illustrates it. The couple were in a motorcycle wreck months before they married. A year into the marriage they separated, and the wife sued for divorce and for her injuries in one complaint. The claim was gone: she had “extinguished her cause of action by marrying the defendant.”
Divorce does not undo that. “If a divorce does not resurrect a prenuptial tort claim which was extinguished by the parties’ marriage, then neither does a recent separation or pending divorce proceeding.”
The Narrow Exception
The doctrine “exists to preserve the sanctity of marriage and to prevent the possibility of collusive lawsuits,” and it “may be abrogated where there is no marital harmony or unity to preserve and where there is no possibility of collusion.” Bearden v. Bearden, 231 Ga. App. 182 (1998).
In Bearden, the spouses had lived apart since 1989, the accident happened in 1995, and neither had any hope of reconciling. That created a jury question. But Gates cautions that the exception “applies only when marital harmony has been entirely absent from the relationship since the time of the injury.”
Filing for divorce, by itself, is not enough.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!