Monday, September 19, 2011

Desertation

Divorce through breakdown of marriage.

Desertion means wilful absenting of the husband from the society of his wife in spite of her wishes. It consists of the unjustified withdrawal from cohabitation by one spouse without the consent of the other with the intention of remaining separated permanently. According to Section 54 (1)(c) Law Reform (Marriage and Divorce) Act 1976 (LRA), respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.

Basically, there are 2 types of desertion which are;

1. Simple desertion

2. Constructive desertion

1. Simple desertion

Simple desertion is a situation where one party leaves another party without reasonable cause, then the party who leaves is in desertion. We can say that there are 4 essential elements of desertion;

I. De facto separation (fact of separation), where the parties must be separated for 2 years and there must be a complete cessation of cohabitation. The desertion must still be running when proceedings are commenced. It usually occurs when one party leaves the matrimonial house.

II. The guilty party must have the intention of living separately from the other.

III. There is no desertion if the separation is with the consent of the other party and the consent must be given freely.

IV. The party must have reasonable cause or excuse for leaving the other.

The desertion must be in 2 years period and it must be continuous.

2. Constructive desertion

It is a situation in which one spouse causes another to leave the matrimonial home or due to the conduct or behaviour of the respondent, the petitioner had to leave the matrimonial home and the respondent is said to be a deserter and in constructive desertion. The test to determine whether the offender is in constructive desertion is the same as the test in determining simple desertion.

Referring to Section 54(1)(d) LRA, it is stated that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition. This section basically discussed about spouses who were still in a marriage relationship, but is living separately.

Lived apart here means that there must be a physical separation and a recognition that the marriage is at an end. Even if the spouses are living under the same roof, they can still be regarded as living apart if they are living in 2 households. However, they will not be regarded as living apart if they are sharing meals and living accommodations, even though they are living in a separate room and is no longer having sexual intercourse.

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