Communication is an essential part of the marital relationship. When a marriage falls apart, a breakdown in communication is either primarily or partly responsible. However, the importance of communication to a marriage is not a new concept. In fact, the facilitation and protection of marital communications are why states across the country recognize a privilege against the disclosure of such communications in court when made in confidence.
Florida’s “Husband-Wife” Privilege
Under Florida’s rules of evidence, § 90.504, “A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.”  However, long before Florida statutory law carved out the current articulation of this privilege, common law courts had long put the principal into practice.
Historically, the common law prevented spouses from testifying against their other spouse. One reason was that a spouse was not qualified to testify against their spouse because the law considered them to be “one flesh” (to a certain degree). This rationale was particularly important in criminal cases because the Fifth Amendment to the U.S. Constitution prohibited courts from compelling a person “to be a witness against himself.”
Eventually, common law courts recognized a privilege against disclosure of confidential marital communications. They reasoned that the privilege was necessary “to preserve the harmony and sanctity of the marriage relationship by encouraging the free flow of communication.”
The Limits of the “Husband-Wife” Privilege
The husband-wife privilege only protects confidential communications made between spouses during marriage. Any communications made before the spouses were married or after their divorce are not protected by the privilege. However, the privilege continues to protect confidential conversations made during marriage even if the parties get a divorce. Without this protection, spouses would be disinclined to share information with each other for fear that the other spouse could be compelled by a court to divulge that information.
The privilege does not apply to any ordinary communication between spouses. Only communications that a spouse intended to be confidential are protected. The privilege also does not prevent the disclosure of non-communicative evidence, such as actions or behaviors exhibited by a spouse.
For example, a spouse does not have to answer the question, “Did your spouse tell you they ran the red light and hit the car?” because it seeks to disclose confidential marital communications. However, if the spouse was a passenger in the car while the other spouse drove, they can be compelled to answer the question, “Did you see your spouse run the red light and hit the car?”
Who Can Exercise the Privilege?
Either spouse can assert the husband-wife privilege. The spouse who is being questioned can refuse to testify about privileged communications. Moreover, a spouse can prevent the spouse who is being questioned from testifying about privileged communications.
Exceptions to the Husband-Wife Privilege?
The husband-wife privilege is unavailable in lawsuits between spouses, such as divorce proceedings. One can imagine how pointless divorce hearings would be if someone could prevent their spouse from testifying against them in their divorce.
The privilege is also unavailable where one spouse is charged for committing a domestic violence offense against the other spouse, their property, or their children. Furthermore, the privilege cannot be used to prevent a defendant-spouse in a criminal case from questioning their spouse about privileged conversations as part of their defense. As a result, a criminal defendant can question their spouse about privileged communications, and the testifying spouse must answer.
The Law Office of Russell S. Hershkowitz, LLC Will Fight for You
If you are facing a challenging legal dilemma involving family law, you should consult an experienced attorney for legal advice. At the Law Offices of Russell S. Hershkowitz, LLC, we have more than twenty years of experience advising and advocating for Altamonte Springs residents in various family and matrimonial cases. Led by Attorney Hershkowitz, our legal team is dedicated to providing you with quality legal representation, so you and your family’s best interests are properly considered.
Call us at (407) 753-4111 or complete our online form to arrange a free initial consultation regarding the merits of your case.
 Despite its anachronistic label, the “husband-wife” privilege protects the confidential communications between same-sex couples as well. When the US Supreme Court recognized in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) that same-sex couples had a constitutional right to marry, it held that they would also enjoy the same rights, privileges, and immunities as heterosexual couples, such as the privilege protecting confidential marital communications.