The privacy of communication between husband and wife

By Atty. Eduardo T. Reyes III

 

In War and Peace, an epic novel written by Leo Tolstoy, he described how husband and wife should ideally converse, thus: “Natásha and Pierre, left alone, also began to talk as only a husband and wife can talk, that is, with extraordinary clearness and rapidity, understanding and expressing each other’s thoughts in ways contrary to all rules of logic, without premises, deductions, or conclusions, and in a quite peculiar way”.

Viewed as one in the eyes of God and fused as a single entity in legal contemplation, married couples are so inextricably-linked that what they say to each other is treated as private, privileged and sacrosanct.

There are two (2) rules under the Law of Evidence that insulate or protect the sanctity of communication between husband and wife.

The first is known as the Disqualification by reason of marriage rule. It envisages a prohibition against a spouse from testifying against the other about almost anything under the sun simply on account of their subsisting marriage. Section 23, Rule 130 of the 2019 Revised Rules on Evidence couches the disqualification in this fashion:

Sec. 23, Rule 130 Disqualification by reason of marriage. – During their marriage, the husband or the wife cannot testify 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. 

Jurisprudence, in turn, articulates the philosophy that undergirds this particular disqualification, viz:

“The reasons given for the rule are:

1. There is identity of interests between husband and wife; If one were to testify for or against the other, there is consequent danger of perjury;
2. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and,
3. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other. (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005)

However, it is a cardinal tenet in law that “when the reason for the law ceases, the law itself ceases”. For instance, even if the spouses are still legally married, but are already separated-in-fact and hopes are dim that they can still reconcile because their marriage is beyond repair, then the prohibition on one testifying against the other, does not apply anymore. The edict on this matter runs as follows:

“But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, 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”. (Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005)

The second kind of marital disqualification is known as the “Disqualification by reason of privileged communication”. Unlike the first kind (Disqualification by reason of marriage),  which applies only during the marriage in order to preserve marital confidences and thus evaporates when the relationship becomes strained, Disqualification by reason of privileged communication is a perpetual disqualification. It effectively seals for good the lips of the spouse who had been a recipient of confidential information from his/ her spouse on account of their marriage. This prohibition is embodied in Section 24, Rule 130 of the 2019 Revised Rules on Evidence, thus:

“Sec. 24. Rule 130  Disqualification by reason of privileged communications. – The following persons cannot testify as to matters learned in confidence in the following cases: 

(a)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. 

X x x”

But it is primordial that in order for the privilege to stick, the Law of Evidence demands that the spouses should have taken “reasonable precaution to protect its confidentiality”; otherwise, when a third person gets wind of what is supposed to be privileged information and the same is breached, it will no longer enjoy the mantle of protection and the information may be divulged without constraints.

On this matter, the Law of Evidence reckons:

“X x x The communication shall remain privileged, even in the hands of a third person who may have obtained the information, provided that the original parties to the communication took reasonable precaution to protect its confidentiality.” 

Even to the untutored in law, their basic tact and circumspection in marital affairs could perpetuate secrecy and privacy.

In this time of digital age and social media where the deep recesses of the home are profligately published and made accessible to the public, it would be well to remember that there are still matters that are better left closer to the chest (or the heart) and jealously guarded with respect, dignity and self-restraint.

After all, as Shakespeare quipped in Much Ado About Nothing: “Speak low if you speak love”.

 

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).