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What Is Spousal Privilege?

Spousal privilege protects husbands and wives from testifying against one another in most court cases.
Spousal privilege is rarely recognized when spousal abuse is alleged.
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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
  • Last Modified Date: 05 August 2014
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Spousal privilege is a legal concept that protects the right to confidentiality between spouses. This law often prevents forced testimony from one spouse against another, and has existed in some form throughout history. Many countries have some form of spousal privilege either codified or traditionally granted through precedent.

There are two major ways that spousal privilege works to protect marital confidentiality. Some forms of the law require one spouse's permission for the other spouse to testify about private marital communications; this means that a spouse cannot violate confidences made under the protection of marriage unless allowed to by the other spouse. The second form of protection offered by spousal privilege allows a spouse to refuse to testify against his or her partner about private communications.

Exceptions to these granted privileges vary between legal systems, but can be important in certain types of cases. In matters of child custody or when a spouse is charged in a crime against his or her partner, the privilege is usually waived automatically. Additionally, if a third party has witnessed the communications in question, or one spouse shared information with a third party not covered by privilege, spousal laws may not apply. In Canada, the law applies only to communications, not observations; if a man sees his wife shoot someone, he will still be obligated to testify on his observation.

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Divorce may or may not affect spousal privilege law, depending on the circumstances. In some cases, ex-spouses retain the right to prevent testimony based on communications made during the marriage. Communications made before or after the marriage ended can be brought before many courts with spousal privilege statutes. In divorce trials, particularly when domestic abuse is alleged, there is little recognized right to this protection. This exception can help prevent an abusive spouse from suppressing the testimony of his or her victim.

One new issue facing spousal privilege statutes is the inclusion of same-sex partners in marital confidence laws. Legal debate is varied, but many experts argue that if the state recognizes the marriage, the marriage is granted identical privileges regardless of sex. Some argue, however, that regions that recognize civil unions but not gay marriage, or do not allow legal recognition of homosexual partnerships at all, may open the door to de facto discrimination by not providing for confidence laws to apply between gay partners. Opponents argue that since a civil union does not constitute a marriage, it does not qualify for similar protection.

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Discuss this Article

ddljohn
Post 6

To the point that this law applies to divorce cases, I think it's great. Divorce cases can get very ugly sometimes if the parties are not separating on good terms. I have a lot of divorced friends and I have witnessed firsthand with them how hostile some partners can become towards each other during a divorce.

I don't know if anyone would actually refuse to testify against their husband or wife if there are rights and property being fought over. But it's really nice that one has to get the approval of the other to testify and reveal some of their personal interactions and conversations.

I do believe that marriage is a sacred institution and what was shared during that marriage should not have to be revealed in a courtroom unless everyone agrees or it's absolutely necessary.

So yay for spousal privileges!

Sara007
Post 5

@lonelygod - I think that when a spouse willingly knows that their partner is committing serious crimes that spousal privilege becomes even more important. There are a lot of things people do for love, and I don't believe that the law should be able to turn spouses against one another.

While I do agree that both spouses should be charged if they are partners in crime, keeping tight-lipped about secrets is part of marriage. Sometimes people fall in love with people that don’t always make the right choices. If the police can only arrest someone by digging into what a spouse knows then I don’t think they are doing their jobs very well, nor is their case very solid.

lonelygod
Post 4

I have often wondered if spousal privilege was really such a good thing to include in the law books. It seems to me by putting that kind of clause in law takes away one of your most valuable witnesses. Not to mention the fact that it seems to be used in too many cases where the testimony could have saved other people from harm.

While I think that spouses should have a right to their privacy, it is an entirely different matter if your spouse is burying bodies in the backyard. I believe that once a spouse has committed a serious crime that anyone protecting them should be charged with a crime too. Since when was obstructing justice OK?

robbie21
Post 3

@EdRick - It's one of those things that varies a lot from one place to another, but I think in most places, it's an option. My friend's husband was charged with dealing drugs. She did not have to testify against him; it was her choice.

He could not prevent her from testifying. Because he had dealt drugs out of their home and car and generally betrayed her trust in every possible way, she waived spousal privilege and agreed to testify. He's behind bars now and their divorce is almost final.

So I guess with that being the case, in domestic violence law it wouldn't usually be a problem; the victim spouse would be allowed to testify.

EdRick
Post 2

I know that attorney-client privilege is not optional; your attorney can't testify against you even if he really wants to. What about spousal privilege? Can your spouse testify against you if they want to?

And what if your spouse has hurt you or your kids? Can you be allowed and/or obliged to testify against them then?

ElizaBennett
Post 1

I read a mystery novel once which hinged on the spousal privilege, in part. A woman had been married before, but her first husband was believed to be dead. She remarried and had two children.

Then, a dead body turned up in their town. The detective realized that it was actually her first husband, meaning that her second marriage was invalid. Her current "husband" was a suspect and the detective realized that the spousal waiver would not apply since they weren't really married. He tried to keep them from leaving town, but they slipped out and remarried secretly. (Turns out he wasn't guilty anyway.)

I won't say what the novel is because I don't want to ruin it for anyone! I will say that it is quite old and British, I think this is a very old part of the Anglo-American tradition.

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