So, let’s say that a husband and wife do something like this: a husband offers the wife an agreement (via a casual text message) that neither party will disclose the details of what they did in their bedroom last night (and only those two know what happened and it wasn’t anything illegal), and the wife knowingly and voluntarily agrees to the text message (e.g. by saying “yes”). Now, if the wife discloses these details to a third party and this results in the husband getting hurt emotionally and he loses friends, could the husband launch a civil lawsuit against the wife, and can he win? (Specifically under a Canadian jurisdiction. Let’s just say that this fictional scenario took place in British Columbia.)
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Historically, there were legal immunities that prevented spouses from suing each other, but I assume that this is in the present, so that this simple analysis is not applicable.– ohwillekeCommented Feb 14 at 7:02
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Yes, it’s set in the present.– LegalNonExpertCommented Feb 14 at 10:02
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Generally you'd need to show that there was a genuine expectation of privacy, the information wasn't already in the public domain, there was no public interest in the disclosure, and genuine damage was done. If one party had previously violated confidences that could indicate there was no genuine expectation of privacy, for instance.– Stuart FCommented Apr 9 at 10:54
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Is the question about spouses suing each other, or about whether this particular action (breaking a casual promise) is something that people can sue over?– BarmarCommented Oct 6 at 13:40
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2 Answers
I can't answer the question for Canada or if he can win but in england-and-wales theres nothing stopping him from launching a civil lawsuit according to the Law Reform (Husband and Wife) Act 1962 https://www.legislation.gov.uk/ukpga/Eliz2/10-11/48
The Act provides that married couples can sue each other under tort, with two exceptions; first, where the court believes there would be no great benefit from a legal action (in which case it can stay the proceedings) and second, when the dispute is to do with property. https://en.m.wikipedia.org/wiki/Law_Reform_(Husband_and_Wife)_Act_1962
In contract law, there are three elements required to form a contract: agreement, consideration, and intention to be legally bound. In your scenario there is agreement (offer by one party and acceptance by the other). There is consideration (each side agreeing not to disclose). It's unlikely that there is intention however. There is a rebuttable presumption of intention in a commercial context and a rebuttable presumption of no intention in a personal context. So the starting point here is that there is no intention. If instead the parties wrote in the messages "I intend for this to be legally enforceable" then the presumption can be rebutted.
