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Desertion as a Ground for Divorce

Please note that the following guide only applies to divorces started before 4pm on 5th April 2022. For divorces after this date, no fault divorce now applies.

Under the law in England and Wales, there is only one basis for divorce and this is the irretrievable breakdown of the marriage. This can be proved with the use of one of five facts:

  • Adultery
  • Unreasonable behaviour
  • Separation for two years (with consent)
  • Separation for five years (without consent)
  • Desertion

Issues such as the division of the marital wealth and arrangements for any children of the relationship are dealt with separately to the main divorce proceedings.
Once a divorce is granted it will then proceed to the decree nisi and then the decree absolute, which will finalise the divorce. 


Desertion as a ground for divorce


Desertion can be a difficult ground to use for divorce since various elements have to be proved for it to succeed. It may be advisable to use another ground such as unreasonable behaviour if that is available. The respondent needs to have deserted the petitioner for at least two years before they can apply for divorce.


What are the requirements of desertion for divorce?


To prove desertion, the following aspects have to be demonstrated by the petitioner that is applying for the divorce:

  • The couple has separated
  • The respondent intended to desert the petitioner
  • The petitioner did not consent to the separation
  • There was no just reason that justified the desertion
  • The desertion was continuous for two years
  • The petition is filed immediately following the desertion

In practical terms, where a respondent has deserted the petitioner, it is unlikely that they wish to remain married. It is therefore likely that they would consent to divorce on the basis of separation after two years (which is the same period of time as desertion) and this is generally easier to prove.


Continuous desertion


In calculating the two-year period, the day that the separation took place is not included. Although there has to be a continuous period of two years separation, desertion can still be used where the couple has cohabited for a period or periods of up to six months in total. However, these periods will not be included in the two-year calculation and the time spent cohabiting will need to be added to the end of the two-year period to calculate the date that the divorce proceedings can commence.


How is intention determined?


What is important is that the respondent has decided that the marriage has ended as opposed to their actions, such as leaving the family home. The court can infer that the respondent had this intention from their conduct, even where the respondent does not specifically state that they are leaving and not returning.


If the parties separate voluntarily and then the petitioner changes their mind and wishes to reunite but the respondent refuses, then this will amount to desertion from the point that the petitioner no longer consented to the separation.


If the respondent leaves without the intention to end the marriage then this will not amount to desertion (for example, moving abroad for a job but with the intention to remain married and at some point return to the family home). Where the respondent decides that they do not wish to return at some point in the future, then desertion will commence.


How do you prove consent to separation?


One of the requirements of desertion is that the petitioner has to show that they did not consent to the respondents desire to separate. Where there is consent to separate then it is not possible to use desertion. Similarly, where consent occurs after desertion has started then this can also bring desertion to an end. 


Where a respondent tells their spouse that they are leaving in advance and the petitioner does not try to prevent this then it is unlikely the petitioner would be able to show the necessary lack of consent.


What is regarded as just cause for desertion?


The behaviour of the petitioner may be relevant in relation to determining whether or not desertion has taken place. If there is a serious reason why the respondent has left, then this requirement will not be met. Examples of just cause could include:

 

  • A fear of physical or psychological harm from the respondent
  • Cruelty by the petitioner towards the respondent
  • Belief that the other party has committed adultery so long as the respondent was given the chance to explain whether this had happened


What would end desertion?


There are various acts that will bring desertion to an end and mean that it cannot be used as a basis for divorce:

  • An agreement by the petitioner as well as the respondent that the parties should live separately
  • Agreement, mutual intention or resumption of the couple cohabiting together (for more than the six-month exemption). 
  • If the petitioner acts in such a way as to give the respondent reasonable cause to remain separated from the respondent
  • If the respondent had initially left the petitioner but then offered to return and the petitioner does not agree to this

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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