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Martial privilege is a legal right that excludes spouses from the obligation to testify about each other. In civil cases, spouses are not required to testify about private communications that occur between them. When a person is tried in a criminal case, that person's spouse cannot be compelled to testify against him or her. Marital privilege is designed to protect confidences exchanged in the context of a marriage.
Protecting marital privilege ensures that conversations that happen in private in a marriage cannot be used as evidence in a trial. This facilitates freer communication in a marriage by assuring spouses that their private discussions will remain private. This right continues even after death or dissolution of marriage. People cannot be ordered to testify about events that occurred in a marriage that has ended.
In order to qualify for marital privilege, a conversation or event must have occurred during the marriage, not prior to the marriage or after a divorce. In addition, it must happen in private with a reasonable expectation of privacy and confidentiality. The presence of witnesses eliminates confidentiality. The spouses or the witnesses could testify about an event or conversation that occurred in the presence of a third party.
There are also some exceptions to this right. If a case involves something one spouse has done to the other or to children associated with the marriage, marital privilege does not apply. While a witness cannot be compelled to testify against a spouse, a witness can be asked to testify against someone else even if giving testimony goes against the wishes of his or her spouse. The law establishes exceptions so that privilege cannot be abused, since excluding evidence in a case can make the case harder to try fairly. While the law wants to recognize the privacy of a marriage, it also does not want to make presentation of evidence unnecessarily challenging.
Marital privilege is also only extended to people in legally recognized marriages. Partners who simply live together or who had a marriage ceremony but failed to file the appropriate paperwork are not covered, nor are couples in marriages that are not recognized by the government.