My spouse has left me – is this desertion?
If one party to the marriage leaves the other then desertion can be considered however this can be a difficult one to use and a petitioner will be advised to use behaviour or indeed 2 years’ separation with consent.
There are two things that need to be satisfied for a desertion petition to be successful. The first is that there has been desertion. There is no clear definition for desertion however the petitioner will need to show that:-
• There has been a separation
• The respondent intended to desert the petitioner
• There was no consent to the separation by the petitioner
• There was no reason for the respondent to leave
• The desertion is continuous
• The desertion has happened immediately before the petition is filed
The main difficulty arises in proving that the respondent intended to desert the petitioner. If the respondent has ended the relationship and then left the home then this will not be desertion. If the petitioner thought all was well and that say, for example, the respondent was going to be working away, but the respondent knew all along that they would not be returning, then this could be classed as desertion.
The second thing that needs to be satisfied is that the desertion has been for a continuous period of at least 2 years. There cannot be several periods of separation totalling 2 years.
You can still claim desertion if you have lived together for a period or periods of up to 6 months in this time but as this period does not count towards the two years, then the period of desertion is effectively extended to 2 years and six months.