I am often told that a husband or wife has simply left a marriage and asked if a divorce could proceed on the basis of “desertion”.

Usually the answer is no.  This is because for desertion to be used it must be the case that:-

1. The other spouse has left for a continuous period of at least two years;
2. There has not been any good reason (“just cause”) to desert;
3. The person who left has intended to desert;
4. The person left behind has not consented.

In practice it is very difficult to fulfil all of these criteria and more usually it is simpler to proceed with a Petition on the basis of the other person’s unreasonable behaviour which can include reference to them leaving the matrimonial home perhaps suddenly or without notice. It is not necessary to consent to unreasonable behaviour.

Otherwise if you intend to wait for two years anyway then you can proceed with a Petition on the basis of two year’s separation as long as the other person consents.

It may also be the case that the parties have entered into a Deed of Separation prior to any divorce proceedings. To have done so would prevent the “deserted” party from issuing a Petition on the basis of desertion as they would be unable to show that they had not consented.