Point of Law

Francisco Ed. Lim

(Extra) marital privilege

Francisco Ed. Lim

August 25, 2017

Marital or spousal privilege is a term used in the law of evidence to describe two separate privileges: testimonial privilege and communication privilege.

In the Philippines, testimonial privilege is enshrined in Section 22 of Rule 130 (Rules of Court), which provides that “[d]uring their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse … ”

Spousal communication privilege, on the other hand, is found in Section 24 of the same Rule 130, which provides that “[t]he 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 …”


The two privileges are similar. Both cannot be invoked by the affected spouse “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.” (Sections 20 and 24, Rule 130). By the express language of the rules, the exceptions are limited to these instances. No more, no less.

The big difference is that testimonial privilege can be invoked only during the marriage. This is not true for the marital communication privilege where the privilege survives the marriage.

The much publicized marital dispute between Comelec Chair Andy Bautista and his wife Tisha appears to have resulted in the filing of criminal cases by one against the other.

Surely, each complainant may testify against each other in those cases as they fall under an exception to the rule. As pointed out above, the marital privilege cannot be invoked by the affected spouse “in a criminal case for a crime committed by one against the other.”

But we have also heard or read about possible congressional investigations and impeachment proceeding against Bautista arising from an alleged ill-gotten wealth, which the good chairman vehemently denies.

Can the chairman’s estranged wife be presented as a witness against him in those proceedings?

According to settled jurisprudence, when the statute itself enumerates the exceptions to the general rule, as in the case of the marital privilege, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. (Lokin, Jr. v. Comelec. G.R. No. 179431-32, June 22, 2010; Salaysay v. Castro, 98 Phil. 364 [1956] 75.)

On the surface, Tisha may not be called as a witness against Bautista in the congressional investigations or impeachment proceeding.

But the affable chairman and his lawyers will have to deal with the case of Alvarez v. Ramirez, 473 SCRA 72 (2005), where the Supreme Court was said to have created a new exception to the prohibition.

In that case, the husband (Maximo Alvarez) was charged with arson by his sister-in-law (Susan Ramirez) for having allegedly set fire to her house. Maximo’s wife (Esperanza) was in the house of Susan and the courts found that the crime was done by Maximo with the intent of injuring his wife. The relationship between Maximo and Esperanza was already strained. They were separated de facto almost six months before the incident.

In ruling that Esperanza could be presented as a witness against husband Maximo, the Supreme Court stated: “[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 interest 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.”

In the case of the Bautista couple, has the marriage so deteriorated to an extent that their relationship is already considered outside the marriage or extra marital for purposes of the spousal privilege? Or is there still hope as my impression seems to indicate from watching the television interview of my friend Andy? If so, it may be not be a bad idea to keep the flame of the marital privilege alive, at least for the sake of the children and the institution of marriage which our law holds sacrosanct.

Keeping my fingers crossed!