Section 17(b) of the Matrimonial Causes Act (Chapter 282) is the principal ground where one spouse has simply left.
Section 17(b)
That, since the marriage, the other party has, without just cause or excuse, wilfully deserted the petitioner for a period of not less than two years.
| Element | What must be shown |
|---|---|
| Separation in fact | The parties have ceased to live together as husband and wife |
| Wilful | An intention to bring cohabitation permanently to an end |
| Without just cause or excuse | Nothing in the petitioner’s conduct justified the departure — see s 18 |
| Without consent | Separation by agreement is not desertion — but see s 19 |
| Two years | Continuous, and the ground must subsist |
A spouse working away, in hospital, in prison or studying overseas is not deserting. What is required is the intention to end cohabitation permanently, coupled with the fact of separation and the absence of just cause or consent.
Note that imprisonment has its own ground in section 17(h).
Section 19 — refusal to resume cohabitation
Where husband and wife are parties to an agreement for separation — whether oral, in writing or constituted by conduct — the refusal of one of them, without reasonable justification, to comply with a bona fide request by the other to resume cohabitation constitutes, as from the date of the refusal, wilful desertion without just cause or excuse on the part of the party so refusing.
Means reasonable justification in all the circumstances, including the conduct of the other party since the marriage, whether the conduct took place before or after the agreement for separation.
Separation by agreement is not desertion — there is no wilful abandonment where both consent.
Section 19 provides the way out of that. A spouse who makes a bona fide request to resume cohabitation, and is refused without reasonable justification, converts a consensual separation into desertion from the date of the refusal. The two-year period then begins.
Three requirements: an agreement for separation (which may be constituted by conduct alone); a bona fide request — genuine, not a device to start the clock; and refusal without reasonable justification, judged on all the circumstances including the requesting party’s own conduct.
Section 20 — desertion continuing after mental disorder
Where a party has been wilfully deserted, the desertion shall not be deemed to have been terminated by reason only that the deserting party has become incapable of forming or having an intention to continue the desertion, if it appears to the Court that the desertion would probably have continued had the deserting party not become so incapable.
Desertion requires a continuing intention to remain apart. On ordinary principle, a deserting spouse who loses the capacity to form that intention — through mental illness, injury or dementia — would end the desertion, and the deserted spouse’s two years would stop running.
Section 20 prevents that. The court asks a counterfactual: would the desertion probably have continued but for the incapacity? If so, it is deemed to continue.
Note the separate ground in section 17(l), which addresses unsoundness of mind directly and requires confinement for five years within the preceding six.
Section 18 — constructive desertion
Section 18 deems the spouse whose conduct drove the other out to be the deserter, even though it was the other who left — and section 18(2) makes it irrelevant that the deserting person did not intend their conduct to have that effect.
Bars and related provisions
- Section 27 — condonation or connivance is an absolute bar on any ground in section 17(a) to (k), including desertion. Resuming cohabitation may condone it.
- Section 29(c) — the court may refuse a decree where the petitioner wilfully deserted the respondent before the matters constituting the ground, or before the expiration of the relevant period.
- Section 31 — desertion is not among the grounds in section 31(3) available without leave in the first three years. Since the ground itself requires two years, leave will usually be needed.
- Section 48 — a decree of restitution of conjugal rights is an alternative response to a spouse who has left; failure to comply with such a decree for one year is itself a ground under section 17(k).
Where the parties have been apart a long time, both section 17(m) (five years’ separation) and section 17(b) (two years’ desertion) may be available.
Desertion is shorter but requires proof of fault — wilfulness and absence of just cause. Separation is longer but requires neither, though section 25 imposes its own conditions, including that the court shall refuse a decree where it would be harsh and oppressive to the respondent.
Note also section 25(7): where both parties have petitioned, the court shall not make a decree on the ground of separation if it can properly make one on the other petition on any other ground.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 17–20, 25, 27–31, 48, 52
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.