In any marriage, private information is often exchanged between spouses. If either you or your spouse is a defendant in a court trial, the husband-wife privilege prevents the confidential communications from being used as evidence against you or your spouse. For example, the privilege may prevent a wife from testifying against the husband if the husband is accused of dealing drugs. The main purpose for the husband-wife privilege is to protect the marital relationship and preventing spouses to be forced to testify against each other.

What Information Is Covered by the Husband-Wife Privilege?

The type of evidence that is covered by the husband-wife privilege are communications between the spouses. This includes any communications that may incriminate the defendant spouse.

Are There Any Exceptions to This Privilege?

This privilege does not apply to bar evidence from all court proceedings. Common situations where the privilege does not apply include:

  • When charged for a crime against your spouse or spouse's property. e.g., domestic violence
  • When charged for a crime against the child of either spouse. e.g., child abuse or neglect
  • When charged for a crime against anyone living with either spouse. e.g., abuse of spouse's parents
  • When asked about matters that pre-date the marriage
  • If you are not legally married there is no privilege, regardless of how long you have been a couple
  • If either spouse discloses confidential information to a third party, the privilege will not bar the third person from testifying

Can the Husband-Wife Privilege Be Waived?

Under the husband-wife privilege, the testifying spouse is the person who holds the privilege, meaning they are the person who has the right to either waive their right and testify if called as a witness or exercise their right and refuse to testify against the other spouse. Either spouse can also waive the privilege by communicating the confidential spousal communication to a third party.

Do I Need a Lawyer to Help Assert My Privilege?

The ability to communicate freely with your spouse about anything is very important, and this privilege ensure that you are able to do so. If you have been accused of a crime and your spouse is being asked to testify against you, it is in your best interest to talk to a family law attorney. A defense attorney will be able to explain to you and your spouse the privileges that you both have related to protecting your marital communications during your criminal trial.