Spousal privilege

In common law, spousal privilege (also called marital privilege or husband-wife privilege) is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

Both types of privilege are based on the policy of encouraging spousal harmony and preventing spouses from condemning, or being condemned by, their spouses: the spousal communications privilege or confidences privilege is a form of privileged communication that protects the contents of confidential communications between spouses during their marriage from testimonial disclosure, while spousal testimonial privilege (also called spousal incompetency and spousal immunity) protects the individual holding the privilege from being called to testify in proceedings relating to their spouse. However, in some countries, the spousal privileges have their roots in the legal fiction that a husband and wife were one person.

Around the world

United States

In the United States, federal case law dictates the privileges permissible and prohibited in federal trials, while state case law governs their scope in state courts. A common rule for both the communications privilege and the testimonial privilege is that, "absent a lawful marriage, civil union, or domestic partnership, there is no privilege." Both rules may be suspended depending on the jurisdiction in the case of divorce proceedings or child custody disputes, but are suspended in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts generally do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse, or in the case of domestic abuse. The privileges may also be suspended where both spouses are joint participants in a crime, depending on the law of the jurisdiction.

Communications privilege

In all federal and state courts, a spousal communications privilege applies in both civil and criminal cases. It is far less controversial than the testimonial privilege as it does not originate from the legal fiction that a husband and wife were one person. Instead, it is rooted in the idea that those who are married should feel safe openly communicating with each other without fear of future litigation or criminal proceedings.