Desertion

Question 1

Where is the ground for desertion found?

Answer 1

S 1(2)(c) MCA

Question 2

When will desertion be found

Answer 2

the deterrer must have no justification for their absence and other party must not consent to the absence.

Question 3

Why is the desertion fact rarely used?

Answer 3

often only used where the R will not consent to two years separation or it is perceived by the P that they will gain a tactical advantage by using this fact

Question 4

What are the two elements to desertion

Answer 4

one physical- de facto separation- and the other mental-the intention to bring the matrimonial union to an end. Lang v Lang

Question 5

What was decided in Hope v Hope

Answer 5

one spouse can desert even when living under the same roof. The point of desertion is when they cease to be one household and become two households; or, in other words, when they are no longer residing with one another or cohabiting with one another’

Question 6

What was decided in Weatherly v Weatherly

Answer 6

A mere refusal of sexual intercourse will not suffice

Question 7

What was decided in Pulford v Pulford

Answer 7

desertion is not the withdrawal from a place, but from a state of things…. what is seeks to enforce is the recognition and discharge of the common obligations of the married state

Question 8

What was decided in Yeatman

Answer 8

a husband could be in desertion by leaving the district and setting up home with another woman while his wofe was in hospital, despite continuing to financially support her

Question 9

In Lang v Lang what was decided

Answer 9

there must be an intention to leave the marriage permanently

Question 10

Is it necessary for the deserting spouse to communicate his or her intention to desert the other?

Answer 10

No, Nutley v Nutley

Question 11

What happens if the innocent spouse consents to the desertion?

Answer 11

will not be in desertion

Question 12

What will be held where the innocent party consents to physical absence in the understanding it is temporary?

Answer 12

It has been held that unless and until the remaining spouse withdraws consent to the other’s absence, desertion cannot be found. That spouse’s lack of knowledge of the other’s intention to desert seems not automatically to vitiate consent to the other’s continued absence. Santos v Santos

Question 13

what is the situation with capacity and intention to desert

Answer 13

R experiencing mental health problems may leave without intending to desert. Capacity to from, and actual formation of, intention must be proved, and the R will be judged on the facts as he or she honestly believes them to be. Perry v Perry

Question 14

What about fluctuating capacity

Answer 14

Where the R has fluctuating capacity and had the requirement of intention at some point, the court may treat desertion as continuing during periods of incapacity it if would have inferred from the evidence that the desertion continued at the time. MCA S 2(4)

Question 15

What is constructive desertion

Answer 15

A party will only be in desertion where there is justification, which is actual, reasonably believed (Everitt v Everett) or honestly believed (Perry)

Question 16

Case which indicates to rely on constructive desertion that must have been forced into withdrawal and that it was justified

Answer 16

Quoraishi

Question 17

Case of constructive desertion where withdrew into separate living

Answer 17

Lang v Lang

Question 18

What was decided in Lang v Lang concerning constructive desertion

Answer 18

requires the court to make value judgements as to when departure will be justified.

Question 19

What did Lang say about intention and constructive desertion

Answer 19

It is necessary to distinguish between intention and desire: the R may not want the P to go, but nevertheless known that that will be the effect of his or her conduct and so intend it.

Question 20

If the innocent party unreasonably refuses to let the R back will the P be in desertion

Answer 20

No

Question 21

Case for refusal to accept the deserters return

Answer 21

• Everitt, the wife’s reasonable belief that the husband had committed adultery during his desertion justified her refusing his offer to return, even though she knew that such adultery could not not be continuing.

Question 22

What else would justify a refusal to accept the deserters return

Answer 22

domestic violence

Question 23

Where is the time bar found

Answer 23

S 2(5) parties can resume living together for up to 6 months without prejudicing their ability to rely on this fact, but the time they spent together must be deducted from period and cannot count towards the 2 year period.