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Facts Of Divorce: Desertion

By Author: Mark Gregory
Total Articles: 2

When it comes to applying for a divorce, it is always necessary for the petitioner spouse (the person issuing the petition) to prove that the marriage has broken down irretrievably. Irretrievable breakdown means that there is no chance of reconciliation. The Petitioner must prove this by giving one of the following reasons, or “facts”:-

Adultery – this must be the other spouse’s adultery; you cannot petition on your own adultery
Behaviour – whilst this is commonly referred to as unreasonable behaviour, the definition is that the Respondent has behaved in such a way that the Petitioner cannot REASONABLY be expected to live with the Respondent
Desertion – that the Respondent has deserted the Petitioner for a continuous period of two years prior to the petition being issued
Living apart for more than 2 years and the Respondent consents to the divorce. (Spouses can “live apart” yet still share the same home)
Living apart for at least 5 years

This article will discuss the fact of desertion, and how this is proved in order to successfully petition for a divorce.

In order to establish desertion as the fact for divorce, your spouse must have left you under one of the following circumstances: -

Without your agreement
Without a good reason
To end your relationship
For more than two years in the past two and half years

It must be noted that a spouse can still claim desertion if they lived together with the other spouse for a total of up to 6 months in the period stated above.

Desertion is rarely used as a reason for divorce, as it is difficult to prove.

For example, if James, who is married to Agatha does not say anything and just goes to work overseas for a period of two years; this may or may not be desertion. If, at the moment that James is leaving, he has no intention of ever returning, this would qualify as a period of desertion from the moment he left. However, he may not have formed this intention until he had been absent for one year; in this case he could only be considered to have been in desertion for one year, considering that spouses can and do work overseas far away from home. As a result, this makes it difficult to prove an individual’s intentions in order to form the basis of desertion. However, if James said to his wife, “I am leaving you” and walked out and started working overseas for two years, this is indeed desertion.

As one Judge stated, there has to be a “separation of hearts and minds” and not just a physical separation.

Couples that find themselves in the situation where there is no proof of the intention of desertion are more likely to either seek divorce on the basis of two years’ separation with consent or behaviour, if the spouse left behind wishes to petition before two years’ has passed.

For legal advice and representation in respect of grounds for divorce consult divorce solicitors in Preston.

Resource Box:

For family law in Preston the author recommends MG Legal.

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