§ SECTION 128 · BSA 2023 · CHAPTER IX — OF WITNESSES

Communications during marriage

The marital privilege. Communications made during marriage between spouses are protected — the recipient cannot be compelled to disclose them, and may not disclose them without the maker’s consent. It survives the marriage. Two exceptions: spouse-v-spouse suits, and crimes by one spouse against the other.

How to read Section 128

What one spouse tells the other in marriage stays private — it cannot be forced out, nor revealed without the speaker’s consent — save in two situations.

Cannot be compelled

A married (or formerly married) person cannot be compelled to disclose any communication made to him during the marriage by his spouse.

Cannot even volunteer

Nor may he disclose it — even willingly — unless the person who made it (or his representative in interest) consents.

The two exceptions

It does not apply in suits between the spouses, or where one spouse is prosecuted for a crime against the other.

The bare Act

The section in its own words — a single rule with two protections and two exceptions.

Section 128 · verbatim

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

In short: this is the marital-communications privilege. What passes in confidence between spouses during marriage is doubly shielded: the recipient can neither be forced to reveal it, nor allowed to reveal it on his own — the only key is the consent of the spouse who made the communication (or that person’s representative in interest). Two features matter. First, the privilege outlives the marriage: the words ‘is or has been married’ mean it continues after divorce or death. Second, it protects communications only — what one spouse said or wrote to the other — not acts or conduct the spouse merely observed. The shield lifts in just two situations: suits between the married persons themselves, and criminal proceedings where one spouse is prosecuted for a crime committed against the other — there, the confidences may be proved.

→ This carries forward IEA 1872 § 122 — the privilege for communications during marriage.

Glossary

communication during marriage

What one spouse said or wrote to the other while married.

is or has been married

The privilege continues even after the marriage ends — divorce or death.

compelled to disclose

Forced to reveal the communication in evidence.

permitted to disclose

Allowed to reveal it — barred even if willing, without consent.

representative in interest

A successor to the maker’s rights — who may also give the consent.

the exceptions

Spouse-v-spouse suits; and prosecution of one spouse for a crime against the other.

The picture

Marital confidences are sealed — neither forced out nor freely revealed — unless the maker consents, or one of two exceptions applies.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The privilegeThe exceptions

the privilegeNeither forced out nor freely revealed — only the maker’s consent unlocks it

In one lineA spouse can neither be compelled to disclose a marital communication nor permitted to disclose it — unless the one who made it (or his representative in interest) consents.

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married;no compulsion…the recipient cannot be forced to reveal what his spouse told him during the marriage — and this holds even after it ends (‘is or has been married’).

nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents,→ nor may he volunteer it, without consenteven willingly he may not disclose it, unless the spouse who made it (or his representative in interest) consents.

ExampleDuring the marriage, W tells H she saw a crime. Years later — even after divorce — H cannot be compelled to repeat what W told him, and cannot volunteer it, unless W consents.

✗ Not thisThe privilege guards communications, not conduct. If H simply saw W do something, that is a fact he may be asked about — it is not a communication she made to him, so it is not protected.

the exceptionsTwo situations where marital confidences may be proved

In one lineThe privilege does not apply in suits between the married persons, or where one spouse is prosecuted for a crime against the other.

except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.two carve-outs where the seal liftsin spouse-v-spouse litigation, and in a prosecution of one spouse for a crime against the other, the communications may be disclosed.

ExampleW prosecutes H for cruelty against her. What H said to W during the marriage can be proved — this is a proceeding for a crime by one spouse against the other, so the privilege does not apply.

✗ Not thisThe exceptions are narrow. Outside a spouse-v-spouse suit or a crime against the other spouse, marital communications stay sealed — there is no general exception just because the evidence would be useful in some other case.

Connected provisions

§ 126 · pairs with

IEA 1872, § 122

Carried forward — the privilege for communications during marriage.

BSA 2023 § 128 — Communications during marriage