Document Type

Article

Disciplines

International Law

Abstract

The indissolubility of marriage is today mainly a religious idea.' In most Western countries it is a thing of the past to believe that when a marriage ceremony takes place it can only be dissolved by the power of God. Through their divorce laws, most countries recognize that a legal marriage can only be as permanent as those involved wish it to be, and most countries allow legal terminations of marriages to permit former spouses to remarry? The legal system provides a procedure for ending marriages that is not available through most religious institutions.' The widespread recognition of legally dissolvable marriages has created several controversies.' In most countries, the breakdown of old laws that recognized interspousal immunity from tort liability have increasingly complicated divorce laws." With these new rules, causes of action that had not previously been actionable between spouses became part of family law.

This Article will deal with some of the problems that arise when tort law is introduced into divorce law. The Article's main goal is to answer the question: when a marriage relationship ends, how does the law deal with the emotional trauma inflicted by a spouse? The Article compares a large common law jurisdiction, the State of Texas, and an important civil law jurisdiction, the Mexican Federal District;' two systems that have borrowed a great deal from each other over the years.9 This comparison will show what each system is doing successfully in this area today and what they can learn from each other in the future.

Part II will discuss the fundamental concepts of the torts of intentional and negligent infliction of emotional distress in Texas. This section will also discuss the issues that the Texas courts have resolved in this area as well as the recent decision of the Texas Supreme Court refusing to recognize a general spousal duty not to negligently inflict emotional distress. ° Part III will explore the basic theories of liability according to the Civil Code in Mexico City. It will also include a discussion of the concept of dahos morales, "moral damages," and their application in divorce cases.

Part IV describes specific approaches that the Texas system should adopt from Mexico City when dealing with domestic torts. These include the "cap" that the civil law places on recovery and the emphasis the civil code places on trying torts in the same suit as the divorce. This part will also identify some of the common law concepts that could help Mexico deal more effectively with the concept of moral damages in the divorce context, such as the separation of intentional and negligent torts. Part V concludes that resolution of each jurisdiction's current dilemmas can be aided by looking at the other.

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