You can get a divorce on the basis that your spouse has deserted you for at least two years immediately before the petition is issued. If you believe that you may qualify for a divorce on the basis of two years desertion, it would almost certainly be easier for you to rely on two years separation with consent instead and we advise you to use that ground wherever possible.
To establish desertion, you must firstly be able to show physical separation for at least two years. Usually, the deserting party is the spouse who physically leaves the family home. However, if your spouse behaves so badly that he/she effectively forces you to leave, it is your spouse who is the deserting party, not you. In this situation, you could probably get a divorce on the basis of your spouse’s unreasonable behaviour, if you and your spouse prefer this option.
In addition to physical separation, there must also be an intention by the deserting spouse to permanently end cohabitation. Both the physical separation and the intention to separate permanently must exist before desertion can begin.
If one spouse leaves the home temporarily, but then decides at a later date that the separation is permanent, desertion begins from the later date.
If the physical separation takes place by consent, neither party can be in desertion. If the separation is compulsory or unavoidable, neither party can be in desertion. However, a spouse can be in desertion even if an injunction is in force forbidding him/her from cohabiting with his/her spouse. If the deserting spouse brings his/her desertion to an end with a genuine offer to resume cohabitation, then the other spouse becomes the deserting party if that offer is refused.
Living apart under the same Roof
It is legally possible to live separate and apart from your spouse, even if you are both living under the same roof, as long as you maintain separate households within the property. The courts recognise that this does happen, usually for financial reasons. However a fairly strict legal test is applied and you might have to provide details to the court about the actual living arrangements, such as whether you share a bedroom, eat meals together or share social time, what arrangements are made for cleaning and other domestic tasks, and how you pay household and other bills.
The law allows parties to try to get back together (referred to as reconciliation) after the initial desertion for one single period, or various combined periods, up to a total of six months. You can still rely on the original date of desertion to get a divorce if the attempt to get back together fails, as long as you do not live together again as man and wife for more than six months in total after that date. However, you cannot include the periods of attempted reconciliation when you calculate the two year period of desertion.
Your spouse deserts you on 1st January 2003. Between that date and the end of 2004 you live together for various periods of time totalling four months, but then finally decide you want a divorce. You would have to wait until 1st May 2005 before issuing a divorce petition – that is, two years and four months from the original date of desertion.