family law Resources

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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.

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.

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.