I have a question... what are the limits if any on a person testifying against their spouse in court if their marriage is common law marriage?
Originally Posted by Spirit13
First, let's talk about what's required to prove up a common law marriage in Texas (not to be confused with a commoner marriage, which is any marriage in Oklahoma).
As an aside, there are, simply put, two types of laws: statutory laws (that is, laws passed by representative bodies and published in law books) and "the common law" (that is, laws created out of thin air by self-important judges with black robe disease and published in books of decisions by courts of appeals).
If you're still awake, let us proceed...
Although Texas recognizes what's popularly-known as 'common law' marriages, the proper term is 'informal' marriage, and rather than the elements of proof thereof being set by judges, the elements are in a statute:
TEXAS FAMILY CODE SECTION 2.401. PROOF OF INFORMAL MARRIAGE
(a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this subchapter; or
(2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
(c) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under Section 2.402.
(d) A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.
(e) For protection of the species, LazarusLong may not enter into an informal marriage, or any other type of marriage.
See Texas Family Code § 2.401.
Assuming an informal marriage has been established, the same rules apply regarding spousal testimony as for formal marriages (that is, marriages with a certificate, ceremony, flowers, and hookers at the bachelor party). Spousal testimony in Texas state courts is governed by the following rule:
TEXAS RULE OF EVIDENCE 504. HUSBAND-WIFE PRIVILEGES
(a) Confidential Communication Privilege.
(1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person.
(2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.
(3) Who may claim the privilege. The confidential communication privilege may be claimed by the person or the person's guardian or representative, or by the spouse on the person's behalf. The authority of the spouse to do so is presumed.
(4) Exceptions. There is no confidential communication privilege:
(A) Furtherance of crime or fraud. If the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding between spouses in civil cases. In (A) a proceeding brought by or on behalf of one spouse against the other spouse, or (B) a proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether the claim is by testate or intestate succession or by inter vivos transaction.
(C) Crime against spouse or minor child. In a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding, when the offense charged is under Section 25.01 Penal Code (Bigamy).
(D) Commitment or similar proceeding. In a proceeding to commit either spouse or otherwise to place that person or that person's property, or both, under the control of another because of an alleged mental or physical condition.
(E) Proceeding to establish competence. In a proceeding brought by or on behalf of either spouse to establish competence.
(b) Privilege not to Testify in Criminal Case.
(1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination as provided in rule 611(b).
(2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel.
(3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's guardian or representative but not by that person's spouse.
(4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy).
(B) Matters occurring prior to marriage. As to matters occurring prior to the marriage.
Notes and Comments
Comment to 1997 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.
See Texas Rule of Evidence 504.
