Abstract

The courts of community property states frequently have faced the problem of whether a marital community should be liable for the tortious acts of one of its members. The results show a startling disarray of views and inconsistencies, due in part to the amalgamated nature of community property law, a civil law concept superimposed upon a common law system.

Under English common law the husband was liable not only for his own torts but also those of his wife. Since generally title and possession of marital property were in the husband, the courts recognized a procedural "merger" of the wife's identity with that of her husband. This common law rule has been abrogated by the equitable doctrine of separate estates, and more generally by married women's statutes.

The Spanish law provided by statute that neither spouse was liable to lose his or her separate property, or his or her half of the community property, on account of any delict which the other spouse might commit. The half share of the community property of the wrongdoing spouse, however, could be reached since the community of property between the spouses would be terminated by the declaratory sentence making that spouse's property liable for the delict.

In community property states, as well as non-community property states, where the tort is one for which both spouses would be jointly liable as if unmarried, then both spouses and their property may be subject to liability. But where there is no basis for joint liability, and personal liability on the part of one of the spouses is clear, the question of community liability generally arises since the community fund often provides the only available source for recovery.

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