Disqualification By Reason of Marriage
This is called the “spousal immunity”. This is different from marital
The rule forbidding one spouse to testify for or against the other
is based on principles which are deemed important to preserve the
marriage relation as one of full confidence and affection, and that
this is regarded as more important to the public welfare than that
the exigencies of the lawsuits should authorize domestic peace to be
disregarded for the sake of ferreting out facts within the knowledge
When Rule Applicable
The rule applies to any form of testimony; therefore it protects
against using the spouse-witness’s admission or against compelling
him to produce documents.
In order that this will apply, it is necessary that the marriage is
valid and existing as of the time of the offer of testimony and
that the other spouse is a party to the action.
The privilege to object to testimony concerning anti-marital facts
may be claimed only when the spouse for or against whom the testimony
of the other is offered as a party to the case.
After the death or the divorce of one spouse, the privilege ceases,
for the reason ceases.
The prosecuting attorney has no right to call a wife as a witness or
to attempt to draw from her statements that the accused had married
her for the purpose of suppressing her testimony.
The wife is competent to testify for the other defendant if the case
against his husband as a party was dismissed.
No unfavorable inference may be drawn from the fact that a party
spouse invokes the privilege to prevent the witness-spouse from
testifying against him or her.
Exception To The Rule:
1. That the case in which the husband or the wife is called to
testify is a civil case instituted by one against the other
2. It is a criminal case for a crime committed by one against the
Reason for the Exception
The reason for the exception is that the identity of the interest
of person disappears and the consequent
danger of perjury based on that identity is non-existent. And in
such a situation, the security and confidence 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.
This can be waived just like any other objection to the competency
of other witnesses. Can be waived through failure to interpose timely
objection or by calling the other spouse as a witness.
Where the accused husband in his testimony imputed the commission of
the crime to his wife, he is deemed to have waived his objection
to the latter’s testimony in rebuttal.
In a prosecution of the husband for the rape of their daughter,
the wife is not disqualified to testify for the prosecution since
the crime may be considered as having been committed against the
wife and the conjugal harmony sought to be protected by this rule
no loner exists.
The exception to the marital disqualification rule was applied
where the wife was the complainant in a case against her husband
for falsification of her signature in a deed of sale involving their
Where the wife is a co-defendant in a suit charging her and her
husband with collusive fraud, she cannot be called as an adverse
party witness as this will violate the disqualification rule.
Marital Disqualification Rule vs. Marital Privilege Rule
1. Marital Disqualification Rule under Sec.22 Rule 130 of the Rules
of Court is broader since it prevents all adverse testimony between
spouses and not merely disclosure of confidential communications
and may even cover matters occurring prior to the marriage.
Marital Privilege Rule under Sec.24 on the other hand is limited
to those made during the course of the marriage.
2. Marital Disqualification Rule - One spouse should be a party to
Marital Privilege Rule - Where neither spouse is a party, this is
the disqualifying rule.
Bar Examination 1998
C is the child of the spouses H and W. H sued his wife W for judicial
declaration of nullity of marriage under Article 36 of the Family Code.
In the trial, the following testified over the objection of W: C, H
and D, a doctor of medicine who used to treat W. Rule on W's objections
which are the following:
1. H cannot testify against her because of the rule on marital
2. C cannot testify against her because of the doctrine on
parental privilege (2%)
3. D cannot testify against her because of the doctrine of
privileged communication between patient and physician (2%)
1. The rule of marital privilege cannot be invoked in the annulment
case under Rule 36 of the Family Code because it is a civil case
filed by one against the other (Sec.22 Rule 130 Rules of Court)
2. The doctrine of parental privilege cannot likewise be invoked by
W as against the testimony of C, their child. C may not be compelled
to testify but is free to testify against her.
(Sec.25 Rule 130 Rules of Court / Art. 215 Family Code)
3. D, as a doctor who used to treat W, is disqualified to testify
against W over her objection as to any advice or treatment given
by him or any information which he may have acquired in his
professional capacity (Sec.24(c) Rule 130 Rules of Court)