Legal Definitions - bum-marriage doctrine

The bum-marriage doctrine is a legal principle that creates an exception to the marital-witness privilege. This privilege generally allows a person to refuse to testify against their spouse in a legal proceeding, or prevents confidential communications between spouses from being revealed in court.

However, the bum-marriage doctrine states that this privilege cannot be used if the marriage, while still legally valid, is in fact "moribund." A moribund marriage is one that has completely broken down, where there is no longer any genuine marital relationship, intimacy, or expectation of privacy between the spouses, even if they haven't formally divorced. In such cases, the law prioritizes the practical reality of the relationship over its mere legal status, allowing one spouse to be compelled to testify against the other.

Here are some examples illustrating how the bum-marriage doctrine might apply:

• Example 1: Estranged Spouses in a Criminal Case

  Imagine a husband is accused of a serious crime. His wife, from whom he has been legally separated for three years, living in a different state, and actively pursuing a divorce, is called as a witness by the prosecution. Even though they are still legally married, a court might apply the bum-marriage doctrine. Since their marriage is clearly "moribund"—they are estranged, live apart, and are in the process of divorcing—the court could rule that the marital-witness privilege does not apply, compelling the wife to testify against her husband.

• Example 2: Financial Fraud with Separated but Undivorced Partners

  Consider a couple who has been living separately for five years, maintaining entirely separate finances, and openly dating other people. They have not formally filed for divorce due to financial complexities or simple inertia. One spouse is later implicated in a complex financial fraud scheme, and the other spouse possesses crucial information relevant to the case. A prosecutor could argue that the bum-marriage doctrine applies. Despite the legal marriage, the relationship is clearly defunct and lacks any marital bond. Therefore, the marital-witness privilege would likely not prevent the separated spouse from testifying about the other's financial activities or knowledge related to the fraud.

• Example 3: Hostile Co-Habitation

  Suppose a couple lives in the same house but occupies separate bedrooms, communicates only through hostile exchanges, and has openly discussed divorce for many months, with no shared activities or emotional connection. One spouse commits an act of domestic violence against a third party in the home, and the other spouse witnesses it. While still living under the same roof, a court could still find the marriage to be "moribund" due to the complete breakdown of the relationship, lack of intimacy, and open hostility. The bum-marriage doctrine would then allow the witnessing spouse to be compelled to testify about the incident, overriding the marital-witness privilege.