When does spousal privilege not apply?

Spousal privilege does not apply if 1) one spouse is charged with a crime against the other their children, 2) one spouse is suing the other, and 3) private communication between spouses is disclosed to other people.

Author: Brad Nakase, Attorney

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There are three main reasons when spousal communication is not privileged:

  1. When one spouse sues another spouse. You cannot prevent your spouse from testifying against you using the concept of spousal privilege.
  2. Marital or spousal privilege does not apply when one spouse is charged with a crime against the other their children.
  3. The spouse privilege applies only to confidential communications between you and your spouse. Spousal privilege does not apply to communication between spouses disclosed to a third person or loudly in public, for example, or with others around.

Under the law, spouses have the right to refuse to testify against each other in court. This is called spousal privilege. This right was established to promote marital harmony, and not encourage bad blood within marriages. In the event one member of a couple ever went to court, it would harm the marriage to have one spouse testify against the other. This type of situation, it has been determined, does more damage to a society than benefit it.

As defined under California Evidence Code, Section 970, spousal privilege only applies to couples in an existing marital relationship. Therefore, a divorcee may not cite spousal privilege and refuse to testify against their former spouse.

Quiz: If you and your spouse are lunch with your parents, is your communication with your spouse in front of your parents protected under spousal privilege?  Answer: No. There is no spousal privilege because the communication between you and your spouse was made in front of third parties.

Exceptions to Spousal Privilege

Under California and federal spousal privilege law, spousal privilege does not apply in the following situations:

  • A lawsuit in which the spouses are named as parties.
  • A legal proceeding to determine one spouse’s competence
  • A legal proceeding to control a spouse’s property due to incapacity
  • Proceedings between former spouses
  • Cases involving child support
  • Proceedings concerning the financial support of a premarital child from a former relationship
  • Crimes against a spouse or their family or property
  • Bigamy
  • Failure to provide child support
  • Non-support of a spouse

These exceptions to spousal privilege only apply to offenses committed before or during the marital relationship.

The reasoning behind the privilege is that spouses testifying against one another would disrupt an existing marriage. If marital harmony has already been disrupted or no longer exists, then there is no reason to protect it at the risk of not achieving justice.

Example A: Rita has been married to Hank for ten years. They have generally gotten along, but Rita has noticed that Hank has certain violent tendencies. Once, when his sports team lost, he punched a hole in the wall. On another occasion, he ripped their flatscreen off the wall and threw it out the window. That said, Hank has never displayed violence toward Rita, so she has dismissed the incidents. However, recently Hank got into an argument with Rita’s brother, Elijah. Hank ended up assaulting Elijah, resulting in Elijah being put in an induced coma for two weeks. Rita feels that her marriage is completely broken. When Elijah sues Hank for assault, Hank expects his wife to cite spousal privilege. However, because Hank committed a crime against one of Rita’s relatives, spousal privilege doesn’t apply. Rita feels badly about it, but when called, she testifies against her husband, citing the incidents of violence she witnessed over the years.

Example B: Chelsea and Curt are married but have been separated for six months. They share a child, Jamie, who lives primarily with Curt. Curt is supposed to receive child support payments from Chelsea, but lately she has not been providing the required amount. Curt takes Chelsea to court to secure the necessary child support. Even though the couple are still married, spousal privilege does not apply. This is because the matter concerns child support. From California’s point of view, the marriage has already been disrupted. Therefore, if Curt is called to testify against Chelsea, he must do so, and cannot cite spousal privilege.

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