Maria Rosaria Marella


This paper analyzes a specific aspect of the so-called privatization of the family, namely the intersection of family law with the law of torts, as experienced in some European civil law countries like Italy, France and Germany. It also takes into account parallel developments emerged in common law jurisdictions and specifically in Canada.

After a brief introduction about the actual structure of the market/family divide within the domestic domain, I focus on Italian case law and Canadian case law, the former assumed as the cutting edge of the transformation occurred in continental Europe.

The privatization of the family is largely understood as the epitome of the modernization of family law and, more broadly, as a sign of the progressivism of the legal system within which it occurs. It represents a new compromise between patriarchy and individualism in the law of domestic relationships, with a shift toward the latter.

In the context of the privatization of the family, tort law has been recently deployed in combination with traditional family law remedies to sanction breach of marital and parental obligations. In this framework, exceptions to the doctrine of interspousal immunity in tort are justified in the light of a more effective enforcement of individuals’ fundamental rights within the family: Family law is no longer to be conceived as a closed, all-encompassing and isolated body of rules. On the contrary, the protection of fundamental rights cuts across the whole legal system. Thus the family should be envisioned as the place of one’s personhood’s self-fulfilment and development, rather than the site of fundamental rights’ defeat.

But, although originally perceived as a way out of family law exceptionalism, the increasing defeat of the interspousal immunity doctrine surprisingly produces quite ambivalent effects on the market/family divide and, eventually, on the identity of the family as a symbol of the modernity of a given legal system.

This paper aims to demonstrate that assessing familial relationships according to tort standards produces heterogeneous outcomes in terms of modernization/tradition in family law. On the one hand, it causes a visible shift of the family toward a market rationale, what is currently interpreted as a sign of modernization; on the other hand, this phenomenon has backlashes, which could be soundly appraised as a move backwards to the traditional family.

Full Text:



  • There are currently no refbacks.

Department of Law - University of Perugia
Via Pascoli, 33 - 06123 Perugia (PG) -  Telephone 075.5852401 
Comparative Law Review is registered at the Courthouse of Monza (Italy) - Nr. 1988 - May, 10th 2010.
Editors - Prof. Giovanni Marini, Prof. Pier Giuseppe Monateri, Prof. Tommaso Edoardo Frosini, Prof. Salvatore Sica, Prof. Alessandro Somma, Prof. Giuseppe Franco Ferrari, Prof. Massimiliano Granieri.

Direttore responsabile:Alessandro Somma