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What is Marital Privilege?

Mary McMahon
Updated May 16, 2024
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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.

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Mary McMahon
By Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

Discussion Comments
By lizmeador — On May 31, 2013

I have already filled out a statement about my husband trying to have sex with a minor. Can I refuse to testify against him even though I have already filled out my statement? I live in Missouri.

By anon319271 — On Feb 11, 2013

People often question the need and purpose of marital privilege, But when you consider attorney-client privilege, doctor- patient or religious privilege, there is none more important than the relationship between husband and wife. They should be joined as one and the marital privilege promote that!

By mabeT — On Aug 02, 2011

I really have mixed feelings about this concept, but as a woman who has seen many abuse cases I do understand why things are the way that they are.

I was unfortunate enough to grow up around a good number of severe alcoholics. I don't know, though. Maybe I was lucky, because I knew precisely what to avoid as an adult.

As such, I saw many women beat to a pulp over things as small as not having dinner finished at a certain time or her husband finding a grain of rice stuck between his fork tines.

It was a different time, but I know many of these women knew things that could have gotten their husbands put behind bars…for a while.

They also knew that as soon as he was released (if he ever served time) she was one dead lady. Most were more concerned over what would happen to their kids if something happened to them.

Although I think these men should have paid for their crimes (some were quite serious) I’m glad that their wives weren’t forced to either protect themselves and their children or lie on the witness stand.

By seag47 — On Aug 01, 2011

Though my brother loved his wife dearly, he waived his marital privilege to testify against her so that she could get the help she needed. Her shoplifting had gotten out of hand. She was facing charges of stealing $500 of clothing from a department store, but the cops did not know what all else she had taken over the years.

My brother had been witness to her coming home on many occasions with bags full of nice clothing and shoes, yet no money ever disappeared from their accounts. When he pressed the issue, she broke down in tears. Vulnerably, she told him about her compulsion. She said that she would try to stop on her own, but she didn’t want therapy.

He decided to tell the court everything. That way, though she would serve time, she could also get mental assistance for her problem. He knew that it was the only way she could ever recover.

By shell4life — On Aug 01, 2011

My mother took advantage of marital privilege with her first husband. Though she later told me that she had seen him rob an electronics store after hours, she did not want to send him away with her testimony.

He never got convicted due to lack of witnesses and evidence. The only reason he was a suspect is that an alcoholic homeless man said he saw him loading televisions and computers into his car from the store.

Because the witness was unreliable and they could not make my mother testify, he got off without any punishment because of reasonable doubt. My mother later divorced him, but she will never tell his secret.

By lighth0se33 — On Jul 31, 2011

Marital privilege can help save women from death by abusive husbands at times. I knew a lady who would have certainly died at the hands of her spouse had she testified against him.

He had her so scared that she wouldn’t even answer the door when it was the police. They kicked the door in and took her husband away in handcuffs for the attempted murder of his coworker.

She knew all about the attempted murder, because he had confided in her all the details. His dad posted bail for him, and she was very glad that she had not breathed a word to the cops when he showed up back home.

By orangey03 — On Jul 31, 2011

I knew a woman who was crazy in love with her husband for ten years. Then, he got arrested for being a serial rapist. She was so disappointed and enraged that she waived her marital privilege and testified against him.

She would not give him an alibi, though he had requested one from her in private. He told her that his parents had abused him as a child, and therefore his pattern of rape was beyond his control. She did not buy it. She let the cops search their home, and they found all the incriminating evidence that they needed.

It was the ultimate form of insult to her that intimacy with her was not enough. The fact that he felt the need to go rape women for gratification was more than she could bear.

By popcorn — On Jul 30, 2011

Every once and awhile the issue of marital privilege comes up in the crime dramas I like to watch. For myself I find it interesting how they play the husband and wives off one each other to gather information. It seems that on television that they always manage to get around the sticky fact that you technically aren't allowed to ask a spouse to testify.

I remember one case where the husband was kidnapping people and keeping them locked up. The wife refused to speak up until the cops let it slip that he was doing certain things with his captives. Then she spilled the beans. I think even marriage has its limits. Even if law can't force you to testify, I think with your average decent person a little subtle pushing would.

By letshearit — On Jul 30, 2011

@sunshine31 - I think that even if you are married to someone who is involved in organized crime that marital privilege should still apply. Often spouses don't have a lot of say in their partner's business affairs and whether we like it or not, loving someone who makes crime their business is not always a choice.

I think that the kind of organized crime should also be taken into consideration as well. White collar crime and running a ring of drug mules are two very different things. If the wife or husband hears you talking shop they shouldn't be forced to reveal their partner's secrets.

By BrickBack — On Jul 29, 2011

@Sneakers41 - Well I know if there was a crime committed against the wife by the husband then she could testify against her husband and in fact, she would probably be required to.

I know that in my domestic violence cases in which the husband batters the wife, the wife may file charges and later refuse to testify. Many prosecutors still go on with the case because many abuse victims often become scared of confronting their abuser in this type of setting.

I also believe that they would be forced to testify under oath and the prosecutors will have plenty of evidence that will force the wife to comply.

By sneakers41 — On Jul 28, 2011

@Sunshine31 - I agree with your assessment, but I also have to say that if the wife were to testify against the husband and the husband is still acquitted of the crime, then I don’t know what type of relationship they would have going forward.

I mean even in the Casey Anthony trial that involved the parents testifying against the defendant, it destroyed the family dynamics and this was not a situation of husband and wife so you can just imagine what that would do to the family.

By sunshine31 — On Jul 28, 2011

I understand the need to invoke the martial privilege for married couples, but I bet in a lot of criminal cases it would be great if that were not allowed. For example, if the husband is involved in organized crime there is a good chance that the wife knows a lot more than she leads on but because of the martial privilege investigators cannot even ask the wife about her husband’s dealings.

I think that in a criminal case like this the wife should be forced to testify because if the husband is innocent then he will have nothing to hide and the wife can even offer testimony to prove this.

The only time I can see it being a problem is if the husband does have something to hide. But wouldn’t we want to know what he is hiding?

Mary McMahon
Mary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a...

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