Desertion and divorce – what to consider

For a court to grant a divorce, a petitioner must demonstrate that the marriage has irretrievably broken down, using one of five factors. Our earlier blogs cover two of these facts: unreasonable behaviour and adultery, but in this blog, we discuss how a party may apply for divorce based on desertion.

Although not a frequently cited fact in divorce proceedings, desertion is sometimes the only available avenue for a party to proceed with, in order to progress their divorce. Where a respondent has suddenly left a marriage that the petitioner thought was happy and the petitioner had no complaint about the respondent’s behaviour during the marriage, the petitioner may need to rely on desertion.

To rely on desertion as the fact supporting the breakdown of the marriage, the petitioner must prove that their spouse has deserted them for a continuous period of at least two years immediately before the petition is filed at court. Whilst there is no clear definition of desertion in case law or statute, it is accepted that the petitioner must demonstrate:

  • Separation between the parties
  • The respondent’s intention to desert.
  • There was no consent to the separation by the petitioner.
  • There was no just cause for the respondent to leave.
  • The desertion is continuous.
  • The desertion immediately precedes the date the petition is filed at court.

It has been a long held tenet of family law, that separation does not have to require the parties to live in different properties. It is for the petitioner to prove that there are two households residing under the same roof. Relevant matters may include whether the parties sleep together, cook for one another, eat together or undertake domestic chores for one another such as washing and ironing.

In considering the intention to desert, the court will focus on the mindset of the parties. It is not the actual leaving that is important, but the change in the respondent’s state of mind meaning he no longer considers himself married and does not plan to return to live with the petitioner. If there is no clear evidence of the parties’ intention, the court can infer an intention from the conduct of the respondent, if that conduct makes the intention clear.

The desertion must be continuous. Usually, several periods of separation cannot be added together to form the two year period. When considering whether desertion has been continuous, a period or periods of cohabitation not exceeding six months in total will not be taken into account. However, any period of cohabitation cannot be counted as part of the period of desertion.

Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you want to discuss your divorce with one of our specialist solicitors, contact us on 01234 889777 to take advantage of our free initial consultation service.

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