C. Desertion

C. Desertion

The essence of desertion is the intentional permanent forsaking and abandonment of one spouse by the other, without consent and reasonable cause. The petitioner is required to prove both the physical separation and the respondent’s intention to bring a permanent end to cohabitation. The respondent must have deserted the petitioner for a continuous period of at least one year immediately preceding the petition for divorce, to be calculated excluding the actual day where the desertion happened. 

The burden of proof is on the petitioner, but intention to desert would easily be inferred by the mere act of leaving the matrimonial home. The standard of proof being the balance of probabilities (i.e. more likely than not) and the degree of probability depend upon the subject matter (the more serious the allegation, the stronger the evidence is required in proof). The intention to desert is presumed to continue once the desertion starts, however if an offer of reconciliation by the deserting spouse is rejected by the petitioner, then the petitioner could not rely on the ground of desertion.

Constructive desertion
Desertion is not defined merely by who left the matrimonial home first. If one party persists in doing things, without just cause or excuse, in which he/she knows would probably not be tolerated by the other party, and that no ordinary person would tolerate, then the forcing of the other party to leave may be seen as “constructive desertion”. The party would be seen as being compelled to leave home due to the other party’s conduct, so the person behaving in such a way may be considered guilty of desertion instead of the party actually leaving home.

It is necessary to prove that the person behaved in such a way knowing that the desertion would probably happen (by the other party leaving the matrimonial home due to the effect of the words or conducts). The necessary intention is inferred by presuming that a person intends the natural and probable consequences of his/her acts, no matter what his/her desire is. Such intention must be accompanied by conduct which made cohabitation virtually impossible and can be regarded as expulsion in fact, but not just bringing unhappiness to the other spouse. Examples may be bringing mistress into the matrimonial home or unreasonable and inconsiderate sexual demands.