Historically, spousal immunity of action in tort was based on the legal concept that a husband and wife were one person. At the time of the reference it had become obvious that this concept was dated and no longer acceptable. The immunity of suit had already been abolished in all other Australian jurisdictions. Similar reforms had also already occurred in the United Kingdom and New Zealand and reform was under way in Canada.
Terms of Reference
In 1972 the Committee was asked to consider and report on the law as to the immunity of suit between husband and wife.
Outcomes
In 1975 the federal Parliament enacted the Family Law Act 1975 (Cth). Section 119 of that Act provides that ‘either party to a marriage may bring proceedings in contract or tort against the other party’. This provision made implementation of the Commission’s primary recommendation in Western Australia unnecessary.
