Getting A Divorce: How To Prove Desertion

One day, your spouse walked out of the house and never came back.

You waited.

And waited.

But your spouse didn’t return.

It took you some time, but you’ve finally overcome your grief. You’ve decided to file for divorce.

There are a few ways of proving irretrievable breakdown of marriage so as to get a divorce. One way is to prove that your spouse has deserted you.

Alternatively, if you are the spouse who left and believe you had a good reason for doing so, you may be able to file for divorce by proving “constructive desertion”.

What is “Desertion”?

Under section 95A(1)(c) of the Women’s Charter, which provides for the law on divorce, “desertion” implies an abandonment of one party against his or her wishes.

In the context of divorce, this means that the deserting spouse has completely rejected the marital relationship.

Minimum Period of Desertion

Before the court grants a divorce, the deserted spouse must prove that he/she has been deserted for a continuous period of at least 2 years before filing for divorce.

“Continuous” desertion for at least 2 years does not mean that the desertion must have happened for 2 years straight. The 2 years can include “breaks”, of up to 6 months in total, where the parties continued to live together. For example, where the deserting spouse returned to the household for some time before leaving again.

However, these “breaks” have to be made up so that there has been a total desertion period of 2 years.

Proving Desertion

To prove desertion:

1. The parties must have been physically separated; and
2. The deserting spouse must have had the intention to desert his/her spouse.

Physical separation

Desertion can only be proved with physical separation and not any other type of separation.

Here, physical separation refers to the parties living in separate households. This is different from living in separate houses, or even sleeping in different bedrooms of the same house. Rather, the parties have to keep separate households.

For example, parties who sleep in separate houses can still be considered as living in the same household if they spend their waking hours together.

Intention to desert

The deserted spouse must also be able to prove that his/her spouse had the intention to desert him/her. The intention to desert is commonly understood as an intention to “bring the matrimonial union permanently to an end”.

More importantly, the intention to desert must be non-consensual. This means that parties cannot use the fact that they had agreed to live apart to get a divorce on the basis of desertion.

That said, the intention to desert can still form even after parties agreed to live apart. One example of this is where the parties have separated and one spouse later expresses the intention to cohabitate again, but the other refuses. Only at this point will that other spouse then be considered to have the intention to desert.

Finally, desertion implies the breakdown of a common household by one spouse even though this was not required by his/her personal circumstances. Therefore, there is no intention to desert if the parties’ situation required them to live apart, such as one spouse going overseas for work or further studies.

Constructive desertion

If you are the deserting party filing for divorce and are relying on the ground of desertion, it is possible for you to cite “constructive desertion” to prove your case. 

Constructive desertion is understood to have occurred when a deserting party leaves his/her spouse because the spouse drove him/her out with the intention to end the marriage.

The deserting spouse must be able to prove that the spouse’s conduct was of such gravity that it gives the deserting spouse a “good cause to leave the matrimonial union”. This may include, for example, physical or mental abuse.

Difference between Separation and Desertion

It is important to appreciate the difference between separation and desertion since they form different facts for proving irretrievable breakdown of marriage under the Women’s Charter.

Separation occurs when both spouses form the intention to terminate the marital relationship and act on such intention. This can include physical separation, but is more than that. There must be a loss of consortium and a total breakdown in the marital relationship.

Separation is the most appropriate fact for proving irretrievable breakdown of marriage when neither party is at fault for their marriage breaking down. It can occur anytime, with the parties agreeing to do so.

On the other hand, desertion is essentially non-consensual separation. The line between separation and desertion is therefore whether there was an intention to desert by one party.

As mentioned above, desertion occurs when one has been abandoned by his/her spouse. This means that the parties are separated not by agreement, but because one spouse has chosen to leave his/her spouse without that spouse’s consent. An agreed separation cannot give rise to desertion.

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If you need legal advice on getting a divorce from your spouse, whether on the fact of desertion or another fact, feel free to get in touch with one of our trusted divorce lawyers.