In the law of the United States, the spousal privilege comprises two separate privileges, the marital confidences privilege and the spousal testimonial privilege.
Marital privilege is based on the policy of encouraging spousal harmony, and preventing people from having to condemn, or being condemned by, their spouses.
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The marital confidences privilege (or marital communications privilege) is a form of privileged communication protecting the contents of confidential communications between a married couple. This privilege applies in civil and criminal cases. When applied, a court may not compel one spouse to testify against the other concerning confidential communications made during marriage.
The privilege generally applies only where both of the following fact situations are present: (1) a third party was not present during the communication (the presence of a third party would destroy the confidential nature of the communication), and (2) both parties intended that the communication be confidential.
The privilege is usually restricted to confidential communications made during marriage and does not include communications made before the marriage or after divorce. The privilege does, however, generally survive the divorce; that is, a person can be prevented from testifying about confidential communications with an ex-spouse made during the marriage.
Either spouse can invoke this privilege, either refusing to testify against their spouse or preventing their spouse from testifying. Finally, courts may require that the communication relate specifically to the marriage.
The spousal testimonial privilege (or spousal immunity) can be used to prevent any party in a criminal case from calling the defendant's spouse to testify against the defendant about any topic. In federal court as a matter of common law, this privilege attaches to the witness spouse, not to the defendant; that is, the defendant's spouse can refuse to testify against the defendant, but the defendant may not prevent his or her spouse from testifying against the defendant.
This privilege does not survive the marriage; that is, after divorce, there is no right to refuse to testify against a defendant ex-spouse. This privilege may be restricted to testimony about events that occurred during the marriage, although in some jurisdictions it may apply to testimony about events occurring prior to the marriage.
Both rules may be suspended depending on the jurisdiction in the case of divorce proceedings or child custody disputes, but are suspended in cases where one spouse is accused of a crime against the other spouse or the spouse's child. Courts generally do not permit an adverse spouse to invoke either privilege during a trial initiated by the other spouse, or in the case of domestic abuse. The privileges may also be suspended where both spouses are joint participants in a crime, depending on the law of the jurisdiction.
Whilst spousal communications in England and Wales are no longer privileged, section 80 of the Police and Criminal Evidence Act 1984 (as amended) gives spouses or civil partners of defendants protection against being compelled by the prosecution to testify, except in limited circumstances.
A spouse or civil partner of a defendant is almost always considered a competent witness for either side, and may choose to testify for or against their spouse. A defendant may, when relevant, compel their spouse or civil partner to testify on their behalf. The prosecution however, may only compel the testimony of the defendant's spouse or civil partner in cases of domestic abuse or violence or sexual offences towards persons under 16. When the spouse or civil partner is a co-defendant to the charges, they may not be compelled to testify.
Note that whilst this gives special recognition to spousal relationships and civil partnerships, the law does not provide for a privilege and it is never possible to exclude evidence simply on the basis that it was a private conversation between a married couple.
In Australian law, both the common law privilege of confidentiality between married people and the privilege of spouses not to testify against each other were assumed to have continued with the "reception" of English law.[1] On 30 November 2011, the High Court of Australia decided that neither privilege existed in common law.[2][3]