Marital Privileges Not To Testify Against Spouse or Domestic Partner
Sometimes married persons who are in litigation with third parties (i.e.,
former spouses and co-parents) are asked to reveal communications in deposition,
through written discovery, or at trial between them that are protected
from disclosure. It may help you to know when to assert an objection to
such inquiries, and how to avoid answering such questions altogether.
Limitations on the marital privilege are generally found at
Evidence Code section 972.
California recognizes both a "testimonial privilege" and a privilege
protecting "confidential marital communications". These privileges
are codified in
Evidence Code section 970,
Evidence Code section 971 and
Evidence Code section 980. They are distinct privileges, and the one that most often applies to family
law are sections 970 and 980, where one's current spouse is embroiled,
for instance, in litigation with a former spouse (or in paternity cases,
the other parent). These privileges apply equally to registered domestic
partners pursuant to the general application of Family Code section 297.5.
These privileges serve two important public policy goals: 1) to preserve
and promote marital harmony and 2) to encourage and preserve confidences
between husband and wife. Essentially, the assumption is that society
has more to lose from the disruption of the marital relationship that
might be caused by encouraging spouses to testify against one another,
or to disclose secrets, than it has to gain by learning what was said.
This makes sense - however, unrepresented parties often lack an understanding
about their rights and privileges, which can be waived if not properly
asserted. Hence today's Blog.
The testimonial and confidential marital communication privileges require
the existence of a valid marriage or domestic partnership. Keep in mind
that they do not apply between you and the spouse or domestic partner
whom you are litigating against - these privileges cease to exist as between
parties to a dissolution or related family law proceeding. In addition,
where no valid marriage existed (i.e., a marriage that was void at its
inception (bigamous, incestuous, lack of proper solemnization and the
like)), the privileges never arise. In contrast, where a marriage is voidable
(minority, fraud, physical incapacity) the privilege exists unless and
until a final judgment of annulment has issued.
Here are some rules and exceptions that should be kept in mind. They relate
to the "testimonial privilege" only.
- The privilege applies only during existence of valid marriage or domestic
- A married person has a privilege not to testify against his or her spouse
in any proceeding. Evidence Code § 970.
- A married person, whose spouse is a party to a proceeding has a privilege
not to be called as a witness by an adverse party without the witness
spouse's prior express consent. Evidence Code § 971.
- Both testimonial privileges belong to the witness spouse.
- The 970 privilege permits a spouse to refuse to answer questions requiring
testimony about the other spouse, whether or not they are a party to a
- The 971 privilege only permits a spouse to refuse to answer (or be called)
in proceedings where the other spouse is a party.
- The 970 privilege belongs only to the spouse who has been called as a witness
- in such cases (i.e., where the other spouse is not a party) the other
spouse has no standing to prevent their spouse from voluntarily testifying.
- The 971 privilege belongs to both spouses. Thus, even if spouse B is willing
to answer questions about spouse A in pending proceedings involving spouse
A, spouse A can assert the privilege to bar the testimony that otherwise
might have been obtained.
- Once the marriage is terminated by Final Judgment (for instance, even a
"status termination" on bifurcated proceedings where other issues
remain reserved and therefore open - like property division or custody),
the privilege evaporates (but see the confidential marital communications
- The privileges do not apply to proceedings brought by one spouse against
- They do not apply to certain types of hearing, including competency or
commitment/conservatorship proceedings (since alleged mental or physical
condition may be in issue).
- These privileges do not apply to juvenile court proceedings. [EC section 972(d)].
- Trial courts are not required to inform spouses of their rights not to
testify - being uninformed and then giving testimony that could have been
avoided does not operate to permit the testimony to be stricken.
There are critical exceptions to the privilege that apply in family court
proceedings [EC section 972(g)]. These include:
- A married person cannot claim the testimonial privilege to refuse to answer
questions about issues relating to income, expenses, assets, debt and
employment of either spouse.
- An action brought against the spouse by a former spouse to establish, modify
or enforce a child, family or spousal support obligation arising from
the marriage to the former spouse.
- An action brought against a spouse by the other parent to establish, modify
or enforce a child support obligation for a child of a nonmarital relationship
between the parties.
- In proceedings brought by a guardian of a child against a spouse relating
to a child support obligation.
- Note that the testimonial privilege in the exceptions above (disclosure
of income and assets, etc.) remains intact if other information is sought
beyond the scope of these finance related exceptions, as to the requested
disclosure of such other information.
There are two exceptions in which a spouse may be deemed to have waived
their marital privilege to refuse to testify or be called as a witness:
- Unless erroneously compelled to do so, a married person who testifies in
a proceeding to which his or her spouse is a party, or who testifies against
the spouse in any such proceeding, waives their section 970 and 971 privileges
in those proceedings for all purposes. 'Erroneously compelled'
means under circumstances indicating "irresistible force", for
instance where a judge orders the spouse to answer the question.
A married person cannot assert these privileges in a civil proceeding which
they themselves have brought, or are defending, for the "immediate
benefit" of his or her spouse, or both jointly. In such cases the
privileges are effectively waived.
[Evidence Code § 973(b)]. A common example would include an action for personal injury damages against
a third party.
Confidential Marital Communications' Privilege
Absent a waiver or an exception, a married person, whether or not they
are a party to proceedings, has a privilege to refuse to disclose confidential
communications between the married person or their spouse made while they
were married or domestic partners.
Evidence Code section 980.
Here are some general points to understand as to the limitations of this
- There must be a valid marriage or RDP at the time of the communication.
- This privilege survives the dissolution of the marriage itself.
- Each spouse or former spouse holds and can assert the privilege.
- Only "confidential communications" are exempted from disclosure.
A "communication" means a written or oral statement or act intended
to convey a message.
- As to the existence of assets and debts, it doesn't prevent disclosure
of the fact of the existence of same - it only protects communications
about those subjects.
- The communication must have been made in a setting that reasonably implies
a confidence. There is a presumption that communications between spouses
were made in confidence, but that presumption can be overcome upon a proper showing.
- If a third person was present, then there may not be a presumption that
the communication was intended to be "confidential" or the presumption
may be rebutted.
- The privilege will not exist where the party asserting it is abusing the
"mantle of confidentiality", for instance where it is part of
an assault by one spouse upon the other.
- It cannot be asserted where its application would serve to enable or aid
a crime or fraud that is being attempted (although the privileges under
EC sections 970 and 971 may apply).
- It does not apply to proceedings against the spouses themselves, and there
are other limited exceptions (juvenile court proceedings, for instance).
As with all my Blogs, this is intended to be informational only. Specific
questions, or circumstances, may well require a more detailed analysis.
My purpose here is merely to introduce you to the protections that the
privileges may afford, so there is no inadvertent waiver on your part.
Thurman Arnold, CFLS