Супружеский привилегий в англо-саксонском праве

Legal term

In the common law, spousal privilege (also called marital privilege or husband wife privilege) is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege. Both types of privilege are based on the policy of encouraging spousal harmony and preventing spouses from condemning, or being condemned by, their spouses: the spousal communications privilege or confidences privilege is a form of privileged communication that protects the contents of confidential communications between spouses during their marriage from testimonial disclosure, while spousal testimonial privilege (also called spousal incompetency and spousal immunity) protects the individual holding the privilege from being called to testify in proceedings relating to their spouse. However, in some countries, the spousal privileges have their roots in the legal fiction that a husband and wife were one person.

In the United States, federal case law dictates the privileges permissible and prohibited in federal trials, while state case law governs their scope in state courts. A common rule for both the communications privilege and the testimonial privilege is that, "absent a lawful marriage, civil union, or domestic partnership, there is no privilege." 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. It is far less controversial than the testimonial privilege as it does not originate from the legal fiction that a husband and wife were one person. The rationale of this rule is that if a witness spouse desires to testify against the party spouse, there is no marital harmony left to protect through the obstruction of such testimony. This common law principle is the view in a minority of U. S. states. A majority of U. S. jurisdictions, however, do not follow U. S. federal common law; in most states, the party spouse, and not the witness spouse, is the holder of spousal testimonial privilege. A minority of states apply testimonial privilege in both criminal and civil cases. For example, under California Evidence Code ("CEC") §970, California permits the application of testimonial privilege to both civil and criminal cases, and includes both the privilege not to testify as well as the privilege not to be called as a witness by the party adverse to the interests of the spouse in the trial.

This privilege is one aspect of a long established rule of evidence, in its origin a common law rule, that a party to legal proceedings shall not be required to testify against himself. Deriving from the legal fiction that a husband and wife are one person, it extends the defendant's protection against self incrimination to his wife also. At common law, accordingly, prior to 1853 the wife of a party in a case was not competent to give evidence for or against him (so could not do so even voluntarily). In civil cases, the common law rule was abolished by the Evidence Amendment Act 1853, section 1 of which provided that one spouse was generally competent to give evidence against the other (i. e. in a civil suit could do so voluntarily) and could be compelled to do so (i. e. by the other party, not being the other spouse). This was extended by the Evidence Further Amendment Act 1869 to proceedings actually brought by the other spouse, in consequence of adultery (i. e. relating to the marriage), the position on compulsion being clarified in Tilley v Tilley (1949). In criminal cases, however, the common law long held that wives were not competent to give evidence against their husband (i. e. for the prosecution), subject to the one exception that a wife could give such evidence where her husband was accused of personal violence against her. However, a spouse (or civil partner) who is an active co defendant to the charge can only testify for the defence (and cannot be compelled to do so by either side), part of her own right to the privilege against self incrimination. It may be prudent to be cautious about seeking to compel a spouse to give evidence against her will, as it may tend to bring the law into disrepute. According to the Crown Prosecution Service, it is questionable whether she will tell the truth under those circumstances, and she may become a hostile witness, circumstances which must tend to reduce the credibility of her evidence.

This form of privilege, restricting the admissibility into evidence of communications between spouses during a marriage, existed in English law from 1853 until it was abolished in 1968 (for civil cases) and in 1984 (for criminal cases). The existence of a communications privilege in the common law (i. e. in case law) is disputed. Its existence was assumed by late nineteenth century writers, but in 1939 Sir Wilfred Greene, MR, noted in the Court of Appeal in Shenton v Tyler that having researched the subject he found no evidence to support this view and that, rather, any such privilege was solely the result of statute. In particular Sir Wilfred cited, as the sole origin of the privilege, section 3 of the Evidence Amendment Act 1853 which provided that, in civil cases, "no husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage". This provision was based on the Second Report of the Commissioners on Common Law Procedure, who referenced the "inviolability of domestic confidence". which extended its applicability to the criminal law. The provision made in the 1853 Act was limited – it did not extend to third party disclosure, nor prevent voluntary disclosure – and was asymmetric, as it did not prevent the utterer from being compelled to disclose communications, only the listener (i. e. it acted only as a modified form of the rule against hearsay).

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. On 30 November 2011, the High Court of Australia decided that neither privilege existed in common law – seemingly influenced (in regard to marital communications) by the English decision to that effect in 1939 in the case of Shenton v Tyler, and (in regard to privilege against testimony) the fact that by 1898 the old common law rule had been abolished in English law (i. e. whilst Australia was still a set of British colonies). For legal purposes, the colonies of New South Wales and Van Diemen's Land had formally adopted English common law in 1828, and each of the other Australian colonies adopted the common law of New South Wales upon their founding. However, a form of spousal privilege in criminal trials was for a long time preserved in Australian statute law, by the Evidence Acts.