Desertion

Content on this page was prepared by the Law Department at St. Brendan's Sixth Form College. This page is no longer updated, and no responsibility is accepted for it by St. Brendan's College or LawTeacher.net

Petitions based on desertion are very rare nowadays: it is much easier to prove simple separation and the deserting spouse (if he can be traced) is unlikely to refuse consent. Desertion requires proof of both the fact and the intention to desert (the animus deserendi): an enforced absence is not sufficient.

G v G [1930] P 72, Hill J
A woman W, now living in England, sought an order for the restitution of conjugal rights. Her husband H lived in Calcutta and worked as a partner in a business there; W's extravagance and tendency not to pay her debts were such that the other partners threatened to expel H if he brought W to live in India. The judge refused the order W sought: there is no desertion, he said, if the parties are separated for some good cause, and that certainly includes the need to earn a living.

Long v Long [1940] 4 All ER 230, CA
W left H (Lord Long of Wraxall) without good reason. About a year later W and H executed a deed of separation confirming that they would live apart and making arrangements for maintenance payments. H subsequently tried to persuade W to return, and when she refused he petitioned for divorce on grounds of W's desertion. His petition failed: his agreement in the deed ended the state of desertion.

Dunn v Dunn [1948] 2 All ER 822, CA
H was in the Navy, serving in the Far East while W and their son S lived in Northumberland. When H returned to home waters, he tried to persuade W to move to Immingham and then to Barrow, where his ship was based, but W refused: she was severely deaf and uncomfortable among strangers, and S had recently started a new job. H petitioned for divorce on grounds of W's desertion, but his petition failed. The Court of Appeal (by a majority) said the onus was on H to show that W had no good cause for refusing to move, and that he had failed to do. Denning LJ added obiter that there was no presumption of law that the husband had a right to decide where the family home should be: it was a joint decision in which husband and wife should have an equal voice.

Pizey v Pizey [1961] 2 All ER 658, CA
After admitting an act of adultery, W left home and went to live with her mother. H did not object to her going, but over the next two years they corresponded by letter and on several occasions H visited W and they had sex together. H subsequently petitioned for divorce on the grounds of W's desertion (having effectively condoned the adultery), but his petition failed: the frequent visits amounted to a course of conduct that showed the separation too had been condoned.

Perry v Perry [1963] 3 All ER 766, Lloyd-Jones J
After twenty years' marriage, W was admitted to a mental hospital suffering from a paranoid psychosis. She was discharged after a few months, but the symptoms returned and one day she left home without any warning. H's subsequent petition for divorce on grounds of desertion was denied: although W (on the medical evidence) knew what she was doing when she left home, she was suffering from delusions that H was trying to kill her and did not truly have the mental capacity to form an intention to desert him.

G v G [1964] 1 All ER 129, DC
After ten years' marriage H began to show signs of mental instability: his conduct frightened the children and one daughter became seriously emotionally disturbed. H went to South Africa in the hope of finding a new life for the family, but when he returned a few weeks later W refused to have him back in the house, because of the effect he was having on the children. The magistrates refused H an access order based on W's desertion, and the Divisional Court of the Family Division affirmed the justices' decision. Simon P said the duty of a husband and wife to live together must be set against their duty to their children: if it were necessary for the wife to live apart from the husband for the sake of a child's health, that would be a good reason negating desertion.

Fraser v Fraser [1969] 3 All ER 654, Brandon J
H and W separated informally by consent, but when a few years later H suggested he should return to the family home, W disagreed. H's petition for divorce on the grounds of W's desertion was dismissed on the facts, both H's offer and W's refusal having been somewhat tentative. But it was clear that a rejected offer of reconciliation in these circumstances could amount to desertion, said the judge obiter, as long as the offer was genuine (in the sense that the petitioner had both the intention and the means to implement it) and not subject to unreasonable or unnegotiable conditions. Moreover, if the petitioner's conduct before the original separation had been unacceptable, the offer must be accompanied by proper expressions of regret and promises of better behaviour in the future.

Quoraishi v Quoraishi [1985] FLR 780, CA
H and W1 were married in Bangladesh (then East Pakistan), but subsequently came to live in England. H decided to take a second wife W2, which was permissible under the Islamic law of Bangladesh, but continued living in England with W1. He then went to Bangladesh to consummate the second marriage, but when he returned to England W1 refused to live with him. H petitioned for divorce on the grounds of W1's desertion, but his petition was denied. H knew he was endangering his first marriage by taking a second wife, and W1 had reasonable grounds for leaving him.

The law also recognises the concept of "constructive desertion", where the behaviour of one spouse is such as to leave the other no real alternative but to move out: in those circumstances, the spouse who moves out can still claim to have been deserted by the other. The introduction of non-molestation orders and other remedies for domestic violence has made this less important than it used to be, but it is still of some significance.

Lang v Lang [1954] 3 All ER 571, PC (Australia)
H and W had been happily married for nearly 20 years, but when H returned from military service overseas he began to abuse W. W left H for about two months, but returned when H promised to behave. Over the next five years H repeatedly broke this promise, often "punishing" W like a child and several times using such violence towards her that the police had to be called. Finally H raped W in "circumstances of calculated and revolting indignity", and told her that he would do the same again as often as he wished. W left H and petitioned for divorce on grounds of H's constructive desertion, cruelty per se not then being a ground of divorce under the relevant Australian law. The High Court of Australia and subsequently the Privy Council affirmed the judge's decision to grant a decree nisi. If a man's conduct is such that a reasonable man must know that it will probably cause his wife to leave home, the fact that the husband did not wish this result does not rebut the inference that he intended the probable consequences of his acts.

Morgan v Morgan (1973) 117 SJ 223, Sterling J
A couple separated after 32 years' marriage; W (who owned the matrimonial home) told H to leave, and found a room for him and bought a flat for herself. After three years' separation they tried for a reconciliation, but abandoned the attempt after three months. After two more years H petitioned for divorce on the basis of W's desertion and unreasonable behaviour, and W cross-petitioned on H's desertion. On the facts, the judge dismissed both the petition and the cross-petition, saying the parting after the failed reconciliation was by mutual consent and could not therefore constitute desertion. But obiter, an agreement to separate after a failed reconciliation lasting under six months should not necessarily be fatal to a petition based on divorce: the object of s.3 of the 1969 Act was to make reconciliation easier rather than harder.

Desertion cannot be regarded as "behaviour" justifying a petition under the previous subsection.

Stringfellow v Stringfellow [1976] 2 All ER 539, CA
After six years' marriage, H told W he no longer loved her, and a few weeks later H moved out of the family home and did not return. Three months after that, W presented a petition for divorce on the grounds that H's behaviour was such that she could not reasonably be expected to live with him. The judge refused the petition and the Court of Appeal dismissed W's appeal. Ormrod LJ said s.1(2)(c) would be pointless if desertion per se could be regarded as behaviour relevant to s.1(2)(b); there must be some conduct of the respondent other than mere desertion or the steps leading up to it.

Back To Family Law Resources

Secure your law degree, order your family law essay right now!

Desertion

Secure your law degree, order your family law essay right now!

Order Now. It takes less than 2 minutes.

Law essay writing

Law resources

Law essays

Law dissertations