Published 24 August 2020, The Daily Tribune

Married couples assume a host of lifelong obligations ranging from the mutual duty to love and support, to the duty to keep each other’s confidences. This allows some to assume that “until death do us part” includes taking each other’s secrets to the grave. However, that is not always the case, especially when public policy considerations come in.

Our Rules of Evidence provide for the marital disqualification rule. Rule 130, Sec. 22 provides that during their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants.

The rule forbidding one spouse to testify for or against the other finds basis in the need to preserve marital relationship, family unity, solidarity and harmony. It becomes necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness.

Furthermore, the spouses as a family unit have a commonality or identity of interest. Compelling spouses to testify against one another is like compelling one to testify against himself.

Furthermore, the rule aims to prevent the consequent danger of perjury, to prevent the danger of punishing one spouse through the hostile testimony of the other.

The requisites for the disqualification to apply are the existence of a valid marriage; the spouse for or against whom the testimony is offered is a party to the case; the testimony is one that is offered during the existence of the marriage, and the case is not one of the exceptions provided in the rule.

The coverage of the prohibition includes not just adverse but also testimony in favor of the spouse.

The disqualification is not an unbridled license for the spouses to commit offenses against each other, especially when the innocent spouse is the sole or key witness to proving the crime. In one case, the Supreme Court has ruled that overriding considerations of public policy demand that the wife should not be disqualified from testifying against her husband in a case of falsification of public document constituted by the husband against his wife. A contrary view would spawn the dangerous precedent of a husband committing many falsifications against his wife as he could conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice in secret — all with unabashed and complete immunity.

It similarly excepts estranged spouses. Where the marital and domestic relations between spouses have become so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. Thus, there is no reason to apply the marital disqualification rule.

Spousal immunity should not be confused with marital privilege found in Rule 130, Section 24 of the Rules of Evidence. The marital privilege rule provides that the husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants.

The requisites for the privilege to apply are the existence of a valid marriage; the privilege is invoked with respect to a confidential communication between the spouses during the said marriage; the spouse against whom such evidence is being offered has not given his consent to such testimony; and the exceptions do not apply.

For instance, in a petition for declaration of nullity of marriage, or in a petition for support against the other spouse, or in a criminal case where one spouse is accused of a crime against the other, the privilege cannot be invoked.

There are differences between the spousal immunity under Rule 130, Section 22 and marital privilege under Rule 130, Section 24. In the former, one of the spouses (against whom testimony is given) must be party to the case, while in the latter, there is no requirement that either spouses are parties to the action. The latter can be claimed during or after the marriage, while spousal immunity can be invoked while the marriage is subsisting. Spousal immunity prevents the other spouse from altogether testifying, while marital privilege covers only testimony that concerns confidential communication while the marriage was subsisting.

For comments and questions, please send an email to