(a) Privileged Marital Communications in Civil Cases. 1. Persons married to each other are competent witnesses to testify for or against each other in all civil actions. 2. In any civil proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between such person and his or her spouse during their marriage, regardless of whether such person is married to that spouse at the time he or she 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 Rule, “confidential communication” means a communication made privately by a person to his or her spouse that is not intended for disclosure to any other person.
Rule 2:504.Spousal Testimony and Marital Communications Privileges (Rule 2:504(a) derived from Code § 8.01-398; and Rule 2:504(b) derived from Code § 19.2-271.2).
Part Two: Virginia Rules of Evidence · Last amended 2025 · Last verified July 16, 2026
In one sentenceRule 2:504 makes spouses competent to testify for or against each other in civil cases, protects confidential marital communications from disclosure, and governs when a spouse can be compelled to testify against the other in a criminal case, with exceptions for crimes against the spouse or a child, forgery, and certain sexual offenses.
Full Text of Rule 2:504
(b) Spousal Testimony in Criminal Cases. 1. In criminal cases persons married to each other are allowed, and, subject to the Rules of Evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither may be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either; (ii) in any case where either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other; or (iii) in any proceeding relating to a violation of the laws pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10), crimes against nature (§ 18.2-361) involving a minor as a victim and provided the defendant and the victim are not married to each other, incest (§ 18.2- 366), or abuse of children (§§ 18.2-370 through 18.2-371). The failure of either spouse to testify, however, creates no presumption against the accused, and may not be the subject of any comment before the court or jury by any attorney. 2. Except in the prosecution for a criminal offense as set forth in subsections (b)(1)(i), (ii) and (iii) above, in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between such person and his or her spouse during their marriage, regardless of whether the person is married to that spouse at the time the person objects to disclosure. For the purposes of this Rule, "confidential communication" means a communication made privately by a person to his or her spouse that is not intended for disclosure to any other person.
Plain-English Summary
Rule 2:504 covers two distinct privileges that often get confused: the marital communications privilege, protecting confidential exchanges between spouses, and spousal testimonial privilege, controlling whether one spouse can be forced to testify against the other. Subdivision (a) addresses civil cases. Paragraph 1 makes clear that spouses are competent witnesses for or against each other in every civil action — marriage does not disqualify a spouse from testifying. Paragraph 2 then protects confidential communications: a person can refuse to disclose, and can prevent anyone else from disclosing, a confidential communication made to their spouse during the marriage, even after the marriage has ended. That privilege does not apply when the spouses are adverse parties in the case, or when one spouse is charged with a crime or tort against the other spouse, the other spouse’s property, or a minor child of either spouse. A “confidential communication” is one made privately, not intended for anyone else to hear.
Subdivision (b) shifts to criminal cases and adds the testimonial privilege on top of the communications privilege. Paragraph 1 allows spouses to testify on each other’s behalf, subject to the ordinary rules of evidence, but neither spouse can be compelled to testify against the other — with three exceptions: a prosecution for an offense committed by one spouse against the other, against a minor child of either, or against either one’s property; a case where one spouse is charged with forging the other’s signature or uttering a forged writing bearing it; and a proceeding involving criminal sexual assault, crimes against nature involving a minor victim (where the defendant and victim are not married to each other), incest, or child abuse. If a spouse chooses not to testify, that silence creates no presumption against the accused, and no attorney may comment on it before the court or jury.
Paragraph 2 of subdivision (b) then layers the marital communications privilege onto criminal cases, mirroring the civil version: outside the three exceptions listed above, a person can refuse to disclose, and prevent others from disclosing, a confidential communication with their spouse made during the marriage, regardless of whether the marriage still exists when the privilege is asserted.
Frequently Asked Questions
Can spouses testify against each other in a Virginia civil case?
Yes. Rule 2:504(a)(1) makes persons married to each other competent witnesses to testify for or against each other in all civil actions.
What is a “confidential communication” between spouses, and is it protected?
A communication made privately by one spouse to the other, not intended for disclosure to anyone else. Rule 2:504 lets either spouse refuse to disclose it, and prevent anyone else from disclosing it, in both civil and criminal proceedings, regardless of whether the marriage still exists when the privilege is claimed.
When does the marital communications privilege not apply?
In a civil case, it does not apply when the spouses are adverse parties, or when one spouse is charged with a crime or tort against the other spouse, the other spouse’s property, or a minor child of either. In a criminal case, the same three categories of offenses listed in Rule 2:504(b)(1) remove the privilege.
Can one spouse be forced to testify against the other in a Virginia criminal case?
Generally, no — Rule 2:504(b)(1) states neither spouse may be compelled to testify against the other, except in a prosecution for an offense by one spouse against the other, a minor child, or property; a forgery case involving the other spouse’s signature; or a proceeding involving criminal sexual assault, certain crimes against nature, incest, or child abuse.
If a spouse refuses to testify in a criminal case, can the prosecutor comment on that refusal to the jury?
No. Rule 2:504(b)(1) states that the failure of either spouse to testify creates no presumption against the accused and may not be the subject of any comment before the court or jury by any attorney.
Amendment History
Adopted and promulgated by Order dated June 1, 2012; effective July 1, 2012. Last amended by Order dated March 21, 2025; effective immediately.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Rules of Supreme Court of Virginia, published by the
Supreme Court of Virginia. Last verified July 16, 2026.
· Official source
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