Spousal privilege is a legal concept that protects the right to confidentiality between spouses. This law often prevents forced testimony from one spouse against another, and has existed in some form throughout history. Many countries have some form of spousal privilege either codified or traditionally granted through precedent.
There are two major ways that spousal privilege works to protect marital confidentiality. Some forms of the law require one spouse's permission for the other spouse to testify about private marital communications; this means that a spouse cannot violate confidences made under the protection of marriage unless allowed to by the other spouse. The second form of protection offered by spousal privilege allows a spouse to refuse to testify against his or her partner about private communications.
Exceptions to these granted privileges vary between legal systems, but can be important in certain types of cases. In matters of child custody or when a spouse is charged in a crime against his or her partner, the privilege is usually waived automatically. Additionally, if a third party has witnessed the communications in question, or one spouse shared information with a third party not covered by privilege, spousal laws may not apply. In Canada, the law applies only to communications, not observations; if a man sees his wife shoot someone, he will still be obligated to testify on his observation.
Divorce may or may not affect spousal privilege law, depending on the circumstances. In some cases, ex-spouses retain the right to prevent testimony based on communications made during the marriage. Communications made before or after the marriage ended can be brought before many courts with spousal privilege statutes. In divorce trials, particularly when domestic abuse is alleged, there is little recognized right to this protection. This exception can help prevent an abusive spouse from suppressing the testimony of his or her victim.
One new issue facing spousal privilege statutes is the inclusion of same-sex partners in marital confidence laws. Legal debate is varied, but many experts argue that if the state recognizes the marriage, the marriage is granted identical privileges regardless of sex. Some argue, however, that regions that recognize civil unions but not gay marriage, or do not allow legal recognition of homosexual partnerships at all, may open the door to de facto discrimination by not providing for confidence laws to apply between gay partners. Opponents argue that since a civil union does not constitute a marriage, it does not qualify for similar protection.
