In any marriage, there is often numerous amounts of private information that is shared between spouses. The husband-wife privilege, also known as spousal privilege or marital privilege, is a term that is used in evidence law that describes two separate privileges available for spouses in a court trial. Those two privileges are the husband-wife communications privilege and the husband-wife testimonial privilege

The purpose of the husband-wife privilege is to both protect the sanctity of marriage and private conversations between spouses, as well as to prevent spouses from being forced to testify against each other. Importantly, the husband-wife privilege is available in both civil and criminal cases. 

Thus, if either you or your spouse is a defendant in a court case, the husband-wife privilege will prevent confidential communications from being used as evidence against you or your spouse. For example, if one spouse is on trial as a defendant in a criminal matter, the other spouse may refuse to testify against their spouse by asserting or claiming the husband-wife testimonial privilege. 

What Information Is Covered by the Husband-Wife Communications Privilege?

As noted above, there are two main privileges encompassed in the husband-wife privilege: the spousal communications privilege, and the spousal testimonial privilege. The spousal communications privilege applies to both civil and criminal matters, and may be asserted by either spouse to protect any confidential communications made during marriage. Importantly, the privilege begins at the time of marriage, so it cannot be asserted to protect communications made before the marriage occurred. 

Further, the spousal communications privilege does survive the marriage. This means that a divorced spouse may still assert the privilege to prevent an ex-spouse from revealing confidential communications. However, the spousal communications privilege does have limits as to when it may be asserted. 

In the following cases, a court will not allow a spouse to assert the spousal communications privilege: 

  1. In cases where one spouse is suing the other spouse;
  2. In cases where one spouse initiated a criminal proceeding against the other spouse, such as domestic abuse cases;
  3. In cases where one spouse is accused of a crime against the child of the other spouse, such as a child abuse or child neglect case; 
  4. In cases where the communication between the two spouses was made in the presence of a third party. In such cases, the third party will be able to testify, and the confidentiality of the communication may be questioned;  
  5. In cases where the competency of spouse is in question; or
  6. In cases where the confidential communication was made in order to commit a crime or in furtherance of a crime. 

What Information Is Covered by the Husband-Wife Testimonial Privilege?

The testimonial privilege is more limited than the communications privilege. Unlike the communications privilege, the husband-wife testimonial privilege may only be asserted by one spouse. Only one spouse, either the witness spouse, i.e. the spouse that is being called to testify, or the party spouse, i.e. the spouse on trial, may assert the privilege. 

In the majority of the states the privilege is held by the party spouse. Additionally, unlike the communications privilege the testimonial privilege only lasts as long as the marriage. Therefore, if the marriage has ended, the witness spouse may testify freely as to any communications made during the marriage. 

However, if the two spouses are currently married, the testimonial privilege can be used to protect any communications that were made before and during the marriage. Further, similar to the communications privilege, the privilege may not be asserted in cases where the spouses are adverse to one another, or in cases where the spouses were joint participants in a crime. Thus, the exceptions to the husband-wife testimonial privilege are the same as the exceptions discussed above. 

Can Either Spouse Waive the Husband-Wife Privilege?

As mentioned above, whether or not a spouse can waive the husband-wife privilege depends on which privilege is being asserted, and which spouse holds the privilege. In the case of the husband-wife communications privilege, both spouses hold the privilege, meaning the testifying spouse cannot waive the privilege against the assertion of the other spouse. However, if the defendant spouse fails to properly assert or object to the other spouse’s testimony, then the privilege may be waived. Further, as noted above, if either spouse communicates the confidential communication to a third party, the privilege will also be waived. 

In regards to the testimonial privilege, whether or not either spouse can waive the privilege depends on the jurisdiction’s laws. In the majority of states, the husband-wife testimonial privilege is held by the party spouse, and can only be waived if the marriage has ended or the party spouse reveals the confidential communication. However, in the minority of states where the witness spouse holds the privilege, the witness spouse may waive the privilege and freely testify as to any confidential communications made before, during, or after marriage. 

Should I Hire an Attorney for Help with the Husband-Wife Privilege?

If you are in a situation where you are needing to assert a husband-wife privilege, chances are you are a defendant in a civil or criminal court case. In a criminal case, it is in your best interests to immediately consult with a knowledgeable and well qualified criminal lawyer in order to ensure that the confidentiality of your marital communications is protected. 

An experienced criminal lawyer will be able to inform you of the evidentiary privileges available to you, according to your local jurisdiction. Additionally, they will help you assert your best defense to the crime you are accused of, as well as represent you in a court of law.

In civil cases, it is likely that you will need the assistance of a family lawyer. A family lawyer in your area can help with any family laws that you need clarification or advice on.