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Are Communications Made To A Spouse Confidential?



Absolutely! But, of course, with some exceptions.


Note that here in California, domestic partnerships may also be protected by marital confidentiality.


Now, there are two different marital/spousal rules and each one is slightly different than the other. There's a "Spousal Privilege" and a "Marital Communications Privilege".


Spousal Privilege

Each state creates their own rules surrounding spousal privilege. In California, the spousal privilege is covered in depth within the California Evidence Code Section


Under the spousal privilege, the person protected is the spouse whose testimony is wanted. For example, if Husband has a court hearing and the other party is wanting to put Wife on the stand to testify against Husband, Wife can decline testifying against Husband.


The means Wife holds the privilege, not Husband. So, if Wife wishes to testify, she can and Husband cannot stop her, under the spousal privilege.


Keep in mind though, this privilege is only applicable in criminal proceedings, not civil proceedings!


Other exceptions to the spousal privilege:

  • Proceedings between the spouses

  • Proceedings regarding property of spouses

  • Proceedings where competence becomes an issue

  • Proceedings under the Juvenile Court Law

  • Criminal proceedings concerning

- Crimes against the family

- Crimes regarding the spouse's property

- Bigamy

- Abandonment or neglect of children


Marital Communications Privilege

Now, the marital communications privilege is a little more broad and provides a little more protections than the spousal privilege. Additionally, the statute also includes domestic partnerships, unlike the spousal privilege.


In California, the spousal privilege is covered in depth within the California Evidence Code Section 980 - 987. Click here to view.


Under the marital communications privilege, communications made in confidence, between the spouses, during the marriage, are privileged and confidential! Additionally, unlike the spousal privilege where only one spouse holds the privilege, under the marital communications privilege, both spouses hold the privilege!


So, using the same example above, if Husband has a court hearing and the other party is wanting to put Wife on the stand to testify against Husband, both Wife and Husband can decline such testimony.


Now, of course, it comes with some exceptions!


Exceptions to the marital communications privilege:

  • If the spouse has enabled or aided in a crime or fraud

  • Proceedings between the spouses

  • Proceedings regarding property of spouses

  • Proceedings where competence becomes an issue

  • Proceedings under the Juvenile Court Law

  • Criminal proceedings concerning

- Crimes against the spouse or child(ren)

- Crimes regarding the spouse's property

- Bigamy

- Abandonment or neglect of children


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