Confidential marital communication refers to the right of a wife and husband to refrain from testifying in a court trial with regard to the confidential statements shared with each other during the period of their marriage or spousal relationship.

The Importance of Marital Communications Privilege

The marital communications privilege, as the name suggests, is only enjoyed by legally married individuals in the court. It helps safeguard the privacy of all communication between a couple. With this privilege, they can reject testifying about a written or verbal communication which they exchanged in private, as a married couple.

Generally speaking, a couple needs to provide all pertinent evidence at the time of the trial and marital privilege may be the only exception to this rule. Such privileges for communication are also applicable in the case of patient-doctor, penitent-priest and client-attorney. The reason for marital privilege excluding evidence from court trial is related to advancing a social goal, that of free and open communication between the partners. It is believed that this type of communication helps in strengthening a marital relationship and is hence given more weight or is prioritized over the necessity of evidence in resolving the legal conflict.

Types of Marital Communications Privileges

Within the marital communications privilege, you will find two distinct privileges:

1 . The Spousal Confidential Communications privilege

2. The Husband-and-Wife privilege

The Spousal Confidential Communications privilege is applicable to all the communications that happened in the duration of the marriage, with the belief that they would remain confidential. Below are the details on how this privilege is exercised:

1 .Is only applicable for communicated words or actions that were supposed to remain confidential

2.The couple may not be married when the trial is taking place. However, it is mandatory for them to be marriage when the communications happened (the privilege is not terminated with divorce)

3. Is not applicable when allege crime has been committed against the partner, their kids or between spouses

The Husband-and-Wife privilege is helpful in safeguarding the marital relationship in case of a legal marriage. It is primarily used for granting spousal immunity in a criminal case i.e. the spouse is excused from testifying at the court in such cases. Here are the details on how the Husband-and-Wife privilege can be exercised:

1.Is only applicable if a couple is in an existing marriage

2. May include speech, non-verbal actions, events and observations

3. Couple may not have been married when the event took place

4. Isnot applicable if the crime has been committed against the partner, their kids, or between spouses

Things to Remember about Marital Communications Privileges

Most jurisdictions offer the privilege of marital communications. These jurisdictions allow a single witness partner to decide if they want to testify. In some cases, evidence is automatically disqualified from one of the spouses.

This is not an absolute privilege. Since the effect of this privilege is to refuse trial evidence, courts may decide on a narrow interpretation.

Legal marriage is the single most vital condition for the privilege to be applicable. A court will not allow partners who just live together to use this privilege. It also cannot be used by those have a false marriage. Further, the communication should date back to the time when the marriage actually existed, not post a divorce. It is usually the state law which determines the legality of a marriage in these cases.

Several jurisdictions make a distinction regarding which partner “holds”. Hence, the partner holding the privilege might surrender it and end up testifying against their spouse.


Shulman Family Law Group