Virginia Code

Va. Code Ann. § 8.01-398 (2026)

Privileged marital communications (Subsection (a) of Supreme Court Rule 2:504 derived from this section)

✓ current as of May 2026

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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.

Code 1950, §§ 8-287, 8-289; 1977, c. 617; 2005, c. 809.

Notes of Decisions

Cited in 19 cases (1 in the last 5 years), 1985–2026 · leading case: Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001).

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Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001). · cites it 8× “*333 Relying on Code § 8.01-398, Bums filed a motion in limine to exclude the letters from evidence.”

Pryor v. Commonwealth, 628 S.E.2d 47 (Va. Ct. App. 2006). · cites it 10× “Pryor's attorney did not argue at trial and does not argue on appeal that her testimony should have been barred by the interspousal confidential communication privilege recognized in Code § 19.”

Carpenter v. Commonwealth, 654 S.E.2d 345 (Va. Ct. App. 2007). · cites it 16× “2 and Code § 8.01-398) effective at the time of the communication and tape recording.”

Church v. Commonwealth, 335 S.E.2d 823 (Va. 1985). · cites it 5× “ainst a minor child of either and except in the case 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; but if either be called and examined in any case as a witness in behalf…”

Wolfe v. Commonwealth, 554 S.E.2d 695 (Va. Ct. App. 2001). · cites it 3× “2 provides: In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses and subject to the exception stated in § 8.01-398, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as…”

Juannitto H. Edwards, etc v. Commonwealth, 457 S.E.2d 797 (Va. Ct. App. 1995). · cites it 10× “We hold that the wife’s testimony was not privileged under Code § 8.01-398 because it did not concern “any communication privately made” between the defendant and his former wife.”

State v. Christian, 841 A.2d 1158 (Conn. 2004). · cites it 2× “504 (b) (LexisNexis 2003); Va. Code Ann. § 8.01-398 (A) (Michie 2000); Wash.”

Brown v. State, 753 A.2d 84 (Md. 2000). · cites it 2× “Va.Code Ann. § 8.01-398 (Michie 1992). The criminal statute provides that in certain cases a spouse is competent to testify "except as to privileged communications.”

Burns v. Com., 541 S.E.2d 872 (Va. 2001). · cites it 8× “Relying on Code § 8.01-398, Burns filed a motion in limine to exclude the letters from evidence.”

Livingston v. Commonwealth, 466 S.E.2d 757 (Va. Ct. App. 1996). “2 provides as follows: In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses and subject to the exception stated in § 8.01-398, may be compelled to testify in behalf of each other, but neither shall be compelled,…”

Diaz v. Virginia Hous. Dev. Auth., 101 F. Supp. 2d 415 (E.D. Va. 2000). · cites it 3× “See Va.Code § 8.01-398(a) ("[N]either husband nor wife shall, without the consent of the other, be examined in any action as to any communication privately made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after…”

Gaylen Maurice Braxton v. Commonwealth (Va. Ct. App. 2006). · cites it 18× “Lynette neither told Braxton that the police were present nor told the police that Braxton was on the phone.”

Show all 19 citing cases →

— Va. Code Ann. § 8.01-398(A) — 6 cases

Burns v. Commonwealth, 541 S.E.2d 872 (Va. 2001). “*333 Relying on Code § 8.01-398, Bums filed a motion in limine to exclude the letters from evidence.”

Wolfe v. Commonwealth, 554 S.E.2d 695 (Va. Ct. App. 2001). “2 provides: In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses and subject to the exception stated in § 8.01-398, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as…”

Juannitto H. Edwards, etc v. Commonwealth, 457 S.E.2d 797 (Va. Ct. App. 1995). “We hold that the wife’s testimony was not privileged under Code § 8.01-398 because it did not concern “any communication privately made” between the defendant and his former wife.”

Burns v. Com., 541 S.E.2d 872 (Va. 2001). “Relying on Code § 8.01-398, Burns filed a motion in limine to exclude the letters from evidence.”

Gaylen Maurice Braxton v. Commonwealth (Va. Ct. App. 2006). “Lynette neither told Braxton that the police were present nor told the police that Braxton was on the phone.”

— Va. Code Ann. § 8.01-398(B) — 3 cases

Gaylen Maurice Braxton v. Commonwealth (Va. Ct. App. 2006). “Lynette neither told Braxton that the police were present nor told the police that Braxton was on the phone.”

Commonwealth v. Langley, 31 Va. Cir. 101 (Fairfax Cir. Ct. 1993).

Commonwealth v. Langley, 35 Va. Cir. 542 (Fairfax Cir. Ct. 1993).

— Va. Code Ann. § 8.01-398(a) — 1 case

Diaz v. Virginia Hous. Dev. Auth., 101 F. Supp. 2d 415 (E.D. Va. 2000). “See Va.Code § 8.01-398(a) ("[N]either husband nor wife shall, without the consent of the other, be examined in any action as to any communication privately made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after…”

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