dissenting.
I would not abolish the doctrine of interspousal immunity. Nor do I believe one spouse should have a right of action against the other for damages for every intentional tort. But, recognizing that the doctrine is judge-made and may be refined by this Court when necessary to promote the ends of justice, I would allow the suit in this case.
This is not a case of an “uninvited kiss”. The plaintiff has suffered grievous injuries as the result of a deliberate tort planned and committed with cold-blooded, criminal intent by the defendant acting through a hired agent. Although the marriage was not terminated by death caused by the tort as in Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975), there can be no reasonable doubt that the tort, once discovered by the plaintiff, led to the dissolution of the *157marriage by divorce. Since we have rejected the “one flesh” fiction as “outmoded”, the sole policy underpinning the doctrine is the societal need “to protect and encourage the preservation of marriages.” Id., 216 Va. at 90, 216 S.E.2d at 197. What is left to be preserved here?
The issue here is whether marriage may be asserted as a ground of immunity by a spouse whose wilful criminal conduct has destroyed the marriage. The majority reason that “[wjere we to authorize such damage suits, we are confident the availability of such a remedy and the accompanying prospect of a monetary award would contribute to the disruption of many marriages.” I do not share that confidence.
The fallacy of the majority’s reasoning is that it assumes that all intentional torts are alike and the consequences they produce are the same. How many marriages would survive an interspousal tort committed with intent to kill, maim, disfigure, or disable? Such malicious conduct amounts to a repudiation of the marital contract. The typical victim of such conduct would terminate the marriage regardless of the availability of a right of action for damages. Only a spouse with a saintly penchant for absolution or one enervated by fear would decide to continue the marriage. And the decision of such a person would never be substantially influenced by the availability of a right of action for damages. The saintly spouse would not be so venal as to terminate the marriage in order to gain standing to sue; the fearful spouse would forgo the right to monetary damages rather than face the trauma of divorce and the risk of retaliation.
I would hold that when, as here, a spouse has been injured by a tort committed by the other spouse with intent to kill, maim, disfigure, or disable and divorce follows the tort without intervening condonation, the victim may maintain an action for damages against the wrongdoer. If such a rule is an exception to the doctrine of inter-spousal immunity (and I regard it simply as the kind of refinement the evolving common law necessitates), it does no violence to the policy underlying the doctrine. Instead, it honors the ancient principle that one who suffers a wrong should not be left without a remedy.