§ 8.01-398.Privileged marital communications (Subsection (a) of Supreme Court Rule 2:504 derived from this section).
Chapter 14. Evidence · Article 4. Witnesses Generally · Last amended 2005 · Last verified July 16, 2026
In one sentenceThis section makes spouses competent to testify for or against each other in any civil action, while separately granting each spouse a privilege — surviving divorce — to block disclosure of confidential marital communications, a privilege unavailable when the spouses are adverse parties or when one is charged with a crime or tort against the person or property of the other or against either spouse’s minor child.
Full Text of § 8.01-398
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Husband and wife shall be competent witnesses to testify for or against each other in all civil actions.
In any civil proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. This privilege may not be asserted in any proceeding in which the spouses are adverse parties, or in which either spouse is charged with a crime or tort against the person or property of the other or against the minor child of either spouse. For the purposes of this section, "confidential communication" means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.
Plain-English Summary
Marriage used to come with a courtroom side effect: spouses could not testify against each other at all. Section 8.01-398 erases that blanket bar. Husbands and wives are competent witnesses for or against each other in civil actions, full stop.
But competency to testify is not the same as being forced to reveal everything said in private. The section separately protects confidential communications made between spouses during the marriage — the kind of private conversation not meant for anyone else’s ears. Either spouse can invoke this privilege to keep such a communication out of evidence, and the privilege survives even after the marriage ends or the couple divorces; what matters is that the communication happened while they were married.
The privilege has real limits, though. It cannot be used when the spouses are on opposite sides of the case, or when one spouse is charged with a crime or tort against the person or property of the other spouse or against either spouse’s minor child. In those situations, the law decides that shielding the communication would work against, not for, justice.
Frequently Asked Questions
Can my spouse be forced to testify against me in a Virginia civil case?
Competency-wise, yes — spouses are competent witnesses to testify for or against each other in civil actions; the separate marital communications privilege only protects specific confidential communications, not all testimony.
What counts as a “confidential communication” under this section?
A communication made privately by a person to his spouse that is not intended for disclosure to any other person.
Does the privilege still apply after a divorce?
Yes, the privilege may be asserted regardless of whether the person is still married to that spouse at the time he objects to disclosure, since it protects communications made during the marriage.
When can the marital communications privilege not be used?
It cannot be asserted when the spouses are adverse parties in the proceeding, or when either spouse is charged with a crime or tort against the person or property of the other spouse or against either spouse’s minor child.
Who holds the privilege — can only one spouse invoke it?
The statute grants the privilege to “a person,” referring to disclosure of a communication between his spouse and him, so each spouse holds the privilege as to their own confidential communications.
Amendment History
Code 1950, §§ 8-287, 8-289; 1977, c. 617; 2005, c. 809.
Source & verification. Section text and amendment history are
reproduced verbatim from the Code of Virginia, published by the
Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026.
· Official source
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