The Pros And Cons Of Desertion

Desertion is a ground for judicial separation as well as for divorce. When one spouse leaves the other in a manner which is not justifiable, the deserted spouse has a remedy by way of matrimonial relief. Desertion consist of the unjustified withdrawal from cohabitation by one spouse without the consent of the other with the intention of remaining separated permanently. As illustrated in the case of Reg v Lershe , desertion is the willful absenting of the husband from the society of his wife inspite of her wishes or vice versa.

Under section 54(1)(c) of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) & Rules [hereinafter referred to as LRA], the petitioner must prove that there had indeed been a desertion lasting for a continuous period of at least 2 years. Moreover, this period must immediately precede the presentation of the petition. Desertion is based on the rejection by spouse of all the obligations of the marriage.

In the case of Thambyah v. Thambyah , Abdul Aziz J referred to Halsbury’s Law of England and has succinctly stated the ingredients and the degree of proof that has to be established in a plea of desertion. The court stated that the offence of desertion is a course of conduct and it must be proved that it

The intention of remaining permanently separated from the other must be seen from the guilty party. In the case of Miller v Miller , an original involuntary separation could be converted into desertion by the formation of an animus deserendi by the respondent when it was physically impossible for her to join the petitioner. Since all that must be proved is the fact of separation. It was irrelevant for this purpose that the spouses were forced to live apart and therefore could not live together even if they wished to do so. Even though there was de facto separation, there would be no desertion unless the guilty spouse had the intention of remaining permanently separate from the