In a typical marriage, spouses talk to each other. They share intimate details of their lives, reveal their strengths and weaknesss, and discuss their deeds – both good and bad. When a marriage fails, the couple’s previously-disclosed flaws and unsavory acts often prove relevant to determinations in their divorce, such as the equitable division of marital assets and award of alimony. In order to establish a husband’s relevant shortcomings and misconduct, a wife may wish to testify to his admissions during the marriage, and vice a versa. But does the law permit that testimony?
Whether one spouse can testify to matters disclosed by the other during their marriage depends on whether the marital communications’ privilege applies. On grounds of public policy, Georgia law expressly excludes from evidence communications between a husband and wife.(1) That preclusion exists even in divorce proceedings. It prevents one spouse from testifying as a witness against the other concerning applicable communications, or from furnishing to another, for the purpose of being introduced into evidence, applicable writings of any kind, made or received during the marriage, unless the other spouse waives the privilege.(2)
The spousal communications’ privilege does not apply to every communication between husband and wife. Rather, the privilege excludes only confidential communications between spouses and does not prohibit one of the married pair from testifying to communications which are not privileged.(3)
Confidential communications between spouses consist of any conversation or act performed by a spouse which is attributable to the husband-wife relation: “i.e., that which might not be spoken or done openly in public as tending to expose personal feelings and relationships or tending to bring embarrassment or discomfiture to the participants if done outside the privacy of the marital relation.”(4)
Non-privileged communications, in contrast, consist of: a) “husband-wife conversations through third parties or in the presence of third parties;” b) a communication which “constitutes a ground of action by one spouse against the other;” and c) conversations “of an impersonal nature spoken or performed without the special confidence one spouse reposes in the other in the marital relation.”(5) Non-privileged evidence also includes financial documents of a spouse either prepared or seen by third parties.(6)
Notably, the party invoking the spousal communication privilege bears the burden of proving that the specific testimony he/she seeks to exclude described a confidential communication between the spouses.(7)
(1) O.C.G.A. § 24-5-501(a)(1). (2) Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11, 15(6) (1930). (3) Id. (4) Georgia International Life Insurance Co. v. Boney, 139 Ga.App. 575, 579, 228 S.E.2d 731 (1976). (5) Id. (6) Dempsey v. Kaminski Jewelry, Inc., 630 S.E.2d 77, 82 (Ga. Ct. App., 2006) (7) Brown v. State, 199 Ga.App. 188, 189(1), 404 S.E.2d 469 (1991) (physical precedent).