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Spousal Privilege in Arizona

Posted on December 28, 2022 in

In Arizona, spouses are treated differently when it comes to courtroom testimony compared to unrelated individuals. The marriage contract between two parties is a legal contract as well as an emotional bond. Arizona considers this bond a privilege when it comes to testifying in both criminal and civil cases. Just as in other privileged relationships such as attorney/client and doctor/patient relationships, Arizona’s Marital Privilege Statute 13-4062 specifies two distinct marital privileges, Anti-Marital Fact Privilege and Marital Communications Privilege. It’s important for spouses involved in litigation or criminal cases to fully understand what these two privileges mean for them.

Do You Have to Testify Against Your Spouse in Arizona?

The word “privilege” has a special meaning when used in legal terms. Privileged relationships are those that the law protects by ensuring that one party cannot be forced to testify against the other in legal proceedings. While in most cases, a person asked to testify in a court case cannot legally refuse — and may face criminal charges if they do so — the courts recognize privacy privileges in several types of relationships including those between:

  • Married couples
  • Attorneys and their clients
  • Doctors and their patients

If you’ve been asked to testify against a spouse in Arizona, you can decline without fear of legal repercussions. In fact, the state requires consent from the other spouse should you wish to testify in their civil or criminal case. You can speak to a criminal defense attorney in Phoenix for more information about spousal privilege.

For common-law spouses, the court requires proof of common-law marital status through documents such as joint housing evidence and witness statements to prove the spousal relationship in order for the privilege to apply.

What is Arizona’s Anti-Marital Fact Privilege?

Anti-Marital Fact Privilege exists when a couple is legally wed in Arizona. It allows one spouse involved in a civil or criminal proceeding to prevent the other spouse from testifying against them. This law completely bars a spouse from testifying if the other spouse objects. This includes any testimony, whether damaging or not. It spells out that a husband cannot face examination against a wife and a wife can’t be forced to face examination when her husband is undergoing civil or criminal proceedings. Testifying requires consent from one party to the other.

What is Arizona’s Marital Communications Privilege?

The Marital Communications Privilege serves to protect all forms of confidential communications between spouses from examination in a civil or criminal court. While the Anti-Marital Fact Privilege only exists while a couple is married and the protection ends after a death or divorce, the Marital Communications Privilege extends even beyond a marriage’s end. This law bars the disclosure of communications between a husband and wife either during their marriage or after a divorce or death. No examination of communications may occur in a court case involving one spouse without the consent of the other spouse except in the following circumstances:

  • During a divorce case between divorcing spouses
  • In civil actions between married or divorced couples
  • In damage actions against someone in adultery cases when a husband or wife commits adultery

Spousal privilege serves to protect the trust and intimacy enjoyed by married couples. Otherwise, being forced to speak out against a spouse would compromise the privacy enjoyed between married individuals. Spousal privilege also applies to gay marriages now that these marriages are recognized as legal at a federal level in Arizona and across the United States.