Spousal privilege

[Cub_Mistress]

Does spousal privilege apply outside criminal or civil cases? For example, if a husband were to be told something in confidence by his wife that would get his wife fired, is he legally free to disclose it to her employer?

[Gary_T]

My understanding is that spousal privilege has to do with whether one can be compelled to reveal something, not with whether one is allowed to reveal it. Furthermore, it is a legal concept applicable to a court of law, not to other aspects of life such as one’s employment.

[Derleth]

It’s actually two separate privileges:

1. the right not to be compelled to testify against one’s spouse, and 2) the protection of marital confidences.

Here’s the Montana statute. The site says other states’ statutes are similar:

“Spousal privilege. A husband cannot be examined for or against his wife without her consent or a wife for or against her husband without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other or to a criminal action or proceeding for a crime committed by one against the other.”

So there’s no indication that it would apply in the OP’s hypothetical about one spouse telling the other spouse’s employer about something that could cause the other spouse to be fired.

So, to be more specific:

The privilege belongs to the person who made the communication. Only he or she can waive it.

Also, a final aspect:

The privilege assumes a legal marriage. Some states recognize common law marriage (we’ll talk about that in another column), and some extend the privilege to long-established relationships, sometimes called “meritricious relationships,” that had many characteristics of marriage (e.g., property ownership, shared assets, children) without the legal sanction.

I wonder if it has ever been successfully applied to a same-sex relationship that can’t, legally, be considered marriage in the eyes of the state.