DESERTION, DIVORCE, AND THE LAW

WHAT IS DESERTION?

Femi was a ladies’ man and a playboy. Needless to say, he was absolutely but deliberately indecisive about choosing a marital partner. Femi’s bachelorhood was put to an abrupt end when he got the only daughter of an Army General pregnant.

It seemed like his days of stringing ladies on with his charm, sweet talk, tech money, and generous spending were over, as it was rumoured that the general insisted that either Femi marries his daughter or his obituary would look like a genuine accident.

Daisy had an elaborate wedding, dancing happily, commending herself that she bagged the sought-after playboy, thinking to herself- “I won!” Her happiness was, however, extremely short-lived as Femi took an excuse from his wedding reception party to use the gents and never returned till today.

Desertion in marital relations refers to when one spouse leaves the other without valid reason or consent. It occurs when a partner abandons the marriage without any just cause and any intention of returning.

Desertion can also be said to be the withdrawal of support and the cessation of cohabitation, without the consent of the other spouse and with the avowed intention of abandoning allegiance, fidelity or /and responsibility to the other spouse and remaining separated in perpetuity.

ELEMENTS OF DESERTION

For the ground of desertion to be considered a viable ground for dissolving a marriage, the spouse approaching the court must show that he/she has been deserted for a complete and continuous period of one year or more, as soon as the divorce petition is presented to the court.

In other words, the following elements must be in place to establish an allegation of desertion-

1. Physical separation
2. Avowed or manifest intention to remain separated on a permanent basis.
3. Absence of consent from the other spouse
4. Absence of any good just cause or justification

Hence, a mere physical separation of the spouses to a marriage does not itself infer desertion. To correctly establish desertion, there must be, in addition to physical separation, the intention or mental element by one or both parties to terminate and bring the marriage to an abrupt end, and so, they deliberately physically stay away. Furthermore, this physical separation must have persisted for about one year or more.

This is why working in a different county or geographical location does not mean or cannot be classified or described as desertion.

WHERE IS DESERTION FOUND IN THE LAW?

Desertion is provided under Section 15(2)d of the Matrimonial Causes Act.

This explains that desertion forms a basis for a court to affirm that a marriage has broken down irretrievably, once it can be established that a spouse to the marriage has deserted the other spouse, for a continuous period of at least one year, then a valid ground for divorce has been established.