2. If my spouse is sent to jail, can I apply for a divorce without his / her consent? What ground can I rely on? If the jail term is less than 2 years, can the petitioner rely on the desertion ground? For a jail term of 2 years or longer, can the two years’ separation ground be applied?
If the jail term is less than 2 years, it is unlikely that the petitioner can rely on the desertion ground. This is because the other spouse may establish a reasonable cause of forced separation due to imprisonment. He may also show that he has no intention to bring the cohabitation to a permanent end.
If a jail term is of 2 years of longer, it is possible to rely on the separation for 2 years ground, which does not require the respondent’s consent. In cases where physical separation is brought about by pressure of external circumstance (like a jail term), if one party intends to end the marriage during that period, such intent should be clearly expressed and/or communicated and there must be indication or recognition that the marriage has ended. This is because a “forced” physical separation may be distinguished from separation brought about by someone walking out of home who naturally intends the consequence of his/her acts (to end a marriage). If you continue to visit your spouse in jail or still hold out yourself as a spouse, it may not be justified as a “true” separation as a ground of divorce.