Section 18 of the Matrimonial Causes Act (Chapter 282) answers an obvious injustice: the spouse who makes life impossible, and then says the other one left.
Section 18
A married person whose conduct —
(a) constitutes just cause or excuse for the other party to the marriage to live separately or apart; and
(b) occasions the other party to live separately or apart,
shall be deemed to have wilfully deserted that other party without just cause or excuse.
It is irrelevant that the married person did not intend the conduct to occasion the other party to live separately or apart.
The two elements
| Element | Test |
|---|---|
| (a) Just cause or excuse | Objective — was the conduct such as to give the other party just cause to live apart? |
| (b) Occasions | Causal — did the conduct in fact cause the other party to live apart? |
Conduct that would justify leaving, but which did not in fact cause the departure, does not satisfy paragraph (b). And a departure caused by conduct that was not serious enough to amount to just cause does not satisfy paragraph (a).
The kinds of conduct ordinarily relied on include violence, persistent cruelty, sustained abuse, expelling the other spouse from the home, bringing another person into the household, or refusing all support.
Note that many of those matters are independently grounds: cruelty under section 17(d), adultery under section 17(a), habitual drunkenness under section 17(f), and the violence offences in section 17(i). Constructive desertion matters most where the conduct falls short of those grounds, or where the necessary period has not run.
Section 18(2) — intention is irrelevant
Ordinary desertion under section 17(b) requires wilful conduct — an intention to bring cohabitation to an end.
Section 18(2) makes that irrelevant to constructive desertion. A spouse cannot answer the allegation by saying “I never wanted them to leave” or “I asked them to stay”.
The focus shifts entirely to the conduct and its effect. That is the right approach: a person who behaves so badly that their spouse must leave should not be better off for having wanted the marriage to continue on those terms.
What follows from a finding of constructive desertion
The person is deemed to have wilfully deserted the other party without just cause or excuse — the exact language of section 17(b).
- The two-year clock runs against them. Once the constructive desertion begins, the deserted spouse must establish two years before petitioning under section 17(b).
- The roles reverse. The spouse who left is the petitioner; the spouse who stayed is the deserter.
- The section 29(c) bar does not bite against the petitioner. That discretionary bar applies where the petitioner wilfully deserted the respondent. A spouse who left with just cause has not deserted.
- It answers a restitution petition. A decree of restitution of conjugal rights under section 48 requires the respondent to have withdrawn without just cause. Constructive desertion establishes that the cause existed.
A related provision on separation
For the purposes of the separation ground in section 17(m), the parties may be taken to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties, whether constituting desertion or not.
So a party relying on five years’ separation need not show that the separation was mutual, or characterise it as desertion. Section 18 and section 25(2) approach the same factual situation from different directions — section 18 to establish fault, section 25(2) to make fault unnecessary.
Note however section 25(4): on a separation petition the court shall refuse a decree where, by reason of the petitioner’s conduct or for any other reason, it would be harsh and oppressive to the respondent, or contrary to the public interest, to grant one. A petitioner whose own conduct caused the separation may face that obstacle.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 17–20, 25, 27–29, 48
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.