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Do they protect communication between spouses?

“Needles and pins, needles and pins, when a man marries, his trouble begins,” must have been the lament of the noblest Ian Douglas, Duke of Argyll. He had the grave misfortune to be married to the Most Noble Margaret, Duchess of Argyll. Married in 1951, the noble couple lived together for 12 years, divorcing in 1963. The complaint of the Duke was the adultery of the Duchess.

Far and wide are, apparently, honourable ladies of the character of Margaret the Duchess. The judge who granted the divorce against her commented that her attitude was, “what the moderns might call sophisticated, but what in plain language can only be described as wholly immoral.” Another judge described her adultery as “repugnant.”

For the Duke, the adultery was devastating. His marriage to the Duchess was his third. Alas! Another instance of the triumph of hope over experience. In a fit of retributive anger, he decided to hurt the Duchess by publishing in the tabloids articles revealing her most intimate secrets. These had been freely conveyed to the Duke by the Duchess during the golden years of their marriage. In the words of the Duchess: “During a number of years before our marriage began to deteriorate, my ex-husband and I had a very close and intimate relationship, in which we freely discussed with each other many things of an entirely private nature concerning our attitudes, our feelings, our hopes, aspirations and foibles, our past lives and previous marriages, our business and private affairs and many other things which one would never have discussed with anyone else.”

She said that they talked about these things on the understanding that they were secrets and because of their complete trust and mutual loyalty, which created an absolute obligation of confidence. Judging from the comments on the life of the Duchess, the revelations were damning. But heaven has no rage like love to hatred turned: the Duke submitted his articles to the public media. And hell hath no fury like a woman scorned: the Duchess sued.

She sought to restrain the Duke and the editor of the Sunday newspaper The People, which had agreed to publish the articles, from publishing statements on her citing breach of marital confidence. She told the court that having conveyed her secrets to the Duke during the subsistence of their marriage, the Duke and anyone else receiving the knowledge in breach of the confidential nature of the information could be restrained from publishing the secrets.

Lucky for the Duchess, the law has a very healthy respect for marriage and marital confidence. According to Justice Ungoed- Thomas of the Chancery Division in England, who granted the Duchess an injunction against the Duke and the newspaper.

Conception

“Marriage is of course, far more than mere legal contract and legal relationship, and even legal status; but it includes legal contract and relationship. If far the court’s protection of confidence there must arise a contractual or property relationship, marriage does not lack its contract. It is basically a contract to be and, according to our Christian conception of marriage, to live as man and wife. It had been said that the legal consideration of marriage – that the promise to become and to remain man and wife – is the highest legal consideration there is.”

The judge then continued to hold that there could not be anything more intimate or confidential than the mutual trust and confidence shared between husband and wife. The confidential nature of marriage, said the judge, goes to the bottom of the relationship, and is so obvious that to express it is superfluous. It is clear to the least intelligent. And courts of law will, when called upon to do so, uphold the confidentiality.

This confidentiality extends even where the courts of law themselves are concerned.

Kenya’s Evidence Act states in Section 130 that “no person be permitted to disclose such communication without the consent of the person who made it.” This confidentiality applies, regardless of whether the marriage is monogamous or not, and regardless of whether it is Christian, Muslim, Hindi or African customary.

Like the rule of confidentiality relating to doctors and lawyers, that relating to marriage is also subject to exceptions. There are two main exceptions, the first relating to court proceedings between the husband and wife. In a suit for divorce, separation, custody of children or maintenance, each of the parties to the marriage is at liberty to breach marital confidentiality, and divulge information obtained from the spouse.

This is because the information is only divulged to the court for purposes of administering justice between the spouses.

Similarly, in criminal proceedings, where one of the spouses is charged with bigamy, an offence against sexual immorality or an offence relating to their respective persons property or their children, the other spouse may testify and disclose matters which would otherwise, be treated as privileged on grounds of marital confidentiality.

The second exception relates to the administration of justice, when marital confidences are proved “aliunde”. This happens when a third party who has intercepted the communication between a husband and wife is called upon to prove the contents of the communication.

Protecting

An interesting example of this exception occurred in England, where a man, after killing a fellow seafarer in the high seas, wrote a letter to his wife confessing to the murder. He then handed the letter in a closed envelope to a fellow member of the ship’s crew, requesting him to post it when the ship docked. He was arrested and the letter handed over to the police. They sought to put it in evidence against him and be objected on grounds of marital confidentiality.

The court ruled that there was no rule protecting marital confidences in such an instance. According to the court, the important aspect of marital confidence is to ensure accord between husband and wife, and to preserve the trust and confidence on which each marriage is based. The purpose of the rule is not to protect the communication itself.

Or, to put it in a banal sense, marital communications are not state secrets. The court will not prevent them from being published, but it will restrain a party to a marriage from breaching the confidence which has been placed upon him or her by the other party during the continuance of marriage. It is not only just to do so, but it would also be embarrassing to marital relations if spouses had to fear disclosure of matters divulged on faith in marital confidence.