Case Update: High Court clarifies scope of Marital Communications Privilege

by Darryl Lau and Wilbur Lua

The law protects certain special classes of communications by conferring a privilege upon them. If a communication is protected by privilege, a person cannot be compelled by the Court to disclose the communication, no matter how important or relevant the communication may be to the legal proceedings.

One of the special classes of communications that the law protects is marital communications between spouses. Under the Marital Communications Privilege (“MCP”) rule in the Evidence Act 1893, a person cannot be compelled to disclose a communication made to him (or her) by his (or her) spouse. Neither can his (or her) spouse be permitted to disclose a communication without his (or her) consent. In Singapore, the MCP rule has been successfully invoked by an accused person to prevent the testimony of his murder confession to his wife from being admitted as evidence in Court (although he was still convicted on the basis of other evidence).

Does the existence of the MCP rule mean that all communications between spouses are protected from disclosure in every situation?

In Systematic Airconditioning Pte Ltd v Ho Seng Ken and others [2023] SGHC 10, the Honourable Justice Chua Lee Ming addressed this question, and made important pronouncements on the scope of the MCP rule in Singapore.                          

Our team consisting of Wilbur Lua and Darryl Lau successfully represented our client in obtaining a favourable outcome in the appeal.

Background

This case involves a claim by a company (“S") against a previous director of S (“H”) and his wife (“Z”) for corporate wrongs done to the company.

S made an application for discovery of certain categories of communications between H and Z that it argued were relevant to its claims against H and Z. H and Z sought to resist disclosure by relying on the MCP rule.

The Assistant Registrar’s Decision

When this matter was initially placed before the Court, the Assistant Registrar held that MCP absolutely protected all marital communications, and that H and Z were therefore not required to disclose any of the correspondences exchanged between them during the subsistence of their marriage.  

The High Court’s Decision

S appealed against the Assistant Registrar’s decision.

During the appeal, the General Division of the High Court reviewed the MCP rule as set out in Section 124(1) of the Evidence Act 1893.

“No person who is or has been married may be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married; nor may he or she be permitted to disclose any such communication unless the person who made it or his or her representative in interest consents…” 

Section 124(1) of the Evidence Act

In his decision, Justice Chua clarified the scope of protection conferred by the MCP rule, as follows:

1.      The MCP rule protects a person from being compelled to disclose communications made to him by his spouse during marriage; but does not protect him from being compelled to disclose communications that were made by him to his spouse during marriage.

2.      The MCP rule also does not protect communications between spouses if the communications were made by the communicator-spouse in his/her capacity as an agent on behalf of a third party.  

3.      The protection afforded by MCP can be waived by the communicator-spouse; for example, where the communicator-spouse voluntarily makes, copies or discloses the communication to a third party.

Conclusion

This decision clarifies that the privilege conferred on marital communications in our law books was not intended to be, and is not, all-encompassing in nature. The MCP rule protects a person from experiencing a situation where his spouse gives evidence on communications that she received from him in confidence. However, it does not absolutely protect the confidentiality of his marital communications per se. If the communicator-spouse keeps a record of his communications to his spouse, he can be compelled to disclose them. This is a fine but important distinction to be aware of in light of the High Court’s decision.

If you have enquiries regarding the scope of marital privilege in Singapore, please contact our team below.