INTRODUCTION ON DESERTION TO DIVORCE

When a married person willfully abandons their duties, especially to the partner he/ she is legally married to or the children of the marriage, it is called desertion. So, desertion by husband or wife happens when either one of the spouses leaves their family home and cuts all conjugal rights. It happens suddenly and without the consent of the other spouse, and the other party has not condoned the said desertion in any way.

Under statutory marriages, Judicial separation is different from desertion. In judicial separation, both partners involved in the marriage make a mutual decision about leaving and it must be in accordance with Form 39 of  the Matrimonial Causes Rule. Even if there isn’t a mutual agreement about leaving, the spouse who intends to leave informs the other partner. When it comes to desertion, the partner who has abandoned their other partner and children (if any) and cease to perform his/her duties with the intention not to return.

Black’s Law Dictionary, 11th ed. (Thomson Reuters, 2019) defines desertion as “the willful and unjustified abandonment of a person’s duties or obligations.”

The Court of Appeal in Agienoji v. C.O.P., Edo State (2007) 4 NWLR (Pt. 1023) 23 defined desertion as: The act by which a person abandons and forsakes, without justification, or unauthorisation, a state or condition of public, social, or family life, renouncing its responsibilities and evading its duties.

The Matrimonial Causes Act, pursuant to Section 18  explains what constitutes desertion:

A married person whose conduct constitutes just cause or excuse for the other Party to the Marriage to live separately or apart, and occasions that other Party to live separately or apart, shall be deemed to have willfully deserted that other Party without just cause or excuse, Notwithstanding that the person may not in fact have intended the conduct to occasion that other Party to live separately or apart.

On what constitutes desertion in Matrimonial Causes, the Court of Appeal in Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1  held:

In a petition for dissolution of marriage, the fact that the parties have lived apart for a continuous period of two years immediately preceding the presentation of the petition is not by itself conclusive proof upon which the divorce can be granted on the ground that the marriage has broken down irretrievably. Desertion within the meaning of section 15(2)(e) of the Matrimonial Causes Act must be one where any of the parties abandons and forsakes without any justification, thus renouncing his or her responsibilities and evading their duties. In the instant case, the evidence of desertion adduced was not one contemplated under section 15 (2) (e) of the Act.

Some could argue that since marriage is not forced, both parties in a marriage should be free to divorce at any time if they feel or have good reason to believe they are no longer interested in the marriage. Forcing someone into marriage or keeping them in a marriage they no longer want to be in is against  Section 35 of the Constitution (1999 as amended)if this were done. The law guarantees married couples the freedom to end their marriage if they decide they no longer want to stay together.

The law has guaranteed freedom to married partners to leave a marriage if they at any point feel that they are no longer interested in continuing in the union. However, such a decision to leave a marriage must satisfy the factors prescribed under the law, and such a decision to leave the union must follow the due process outlined under the law, or else it could amount to desertion.

In respect to the dissolution of marriage, the Court of Appeal in Nanna v. Nanna , while affirming the ingredients for the dissolution of marriage on the ground that the marriage has broken down irretrievably, held as follows:

That by virtue of section 15(2) of the Matrimonial Causes Act, the court hearing a petition for a decree of dissolution of a marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following facts:

(a) that the respondent has willfully and persistently refused to consummate the marriage;

(b) that since the marriage, the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent;

(c) that since the marriage, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and the respondent does not object to a decree being granted;

(f) that the parties of the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;

(g) that the other party to the marriage has, for a period of not less than one year, failed to comply with a decree of restitution of conjugal rights made under the Act;

(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable ground for presuming that he or she is dead.

READ ALSO: GRANDPARENTS’ RIGHTS TO CUSTODY

CONSTRUCTIVE DESERTION OR SEPARATION WITH JUST CAUSE

A deserter is not necessarily the spouse who lives separately and apart from the matrimonial home. The real deserter is the party whose conduct is responsible for the cessation of cohabitation. A conduct which will be regarded as “just cause or excuse” must of necessity be of grave nature.

PROVING DESERTION

The Supreme Court in the case of Chukwuogor v. Attorney-General, Cross River State (1998) 1 NWLR (Pt. 534) 375, listed two necessary elements that must be present in an act of desertion or abandonment:

1. animus deserendi, that is, an intention to desert; and
2. The act of desertion.

However, before a party can even complain of desertion, such a party must first prove that a valid marriage exists. This is because an illegal union is an invalid marriage in the eyes of the law and is therefore not enforceable under the law.

Proving desertion as a ground for divorce can be a challenging task. The burden of proof lies on the petitioner to establish that the desertion was continuous for the requisite period and that the abandonment was without justifiable cause. This often involves gathering evidence, testimonies from family members or friends, and possibly expert witnesses who can testify to the emotional and financial consequences of the desertion.

In cases where the spouse has returned to the marital home temporarily, or where there have been attempts at reconciliation, proving continuous desertion becomes more complex. The court will scrutinise whether these attempts were genuine or if they were mere gestures to avoid a divorce.

CONSEQUENCES OF DESERTION

Ground for Dissolution of Marriage (Divorce): Desertion is recognized as a statutory ground for the dissolution of marriage under Section 15 (2) (d) of the Matrimonial Causes Act (MCA), which provides that a party may petition for divorce where the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition and that the Respondent is not opposing dissolution of the marriage. While this statutory provision appears straightforward, the legal concept of desertion is layered with complex jurisprudential requirements. It is not merely the fact of living apart, but also the presence of an animus deserendi a deliberate intention to abandon the marital union without just cause.

 TERMINATION OF DESERTION

1. Resumption of Cohabitation: The resumption of cohabitation by the spouses removes the element of judicial separation, thereby putting an end to desertion.
2. Offer to return: animus revertendi. The loss of animus deserendi will terminate desertion. However, this offer needs to be communicated to the spouse. The deserted party is bound to accept a genuine offer or he/she will run the risk of being in desertion himself.
3. Supervening consent: The deserted spouse may bring the desertion to an end by subsequently giving his/her consent to the separation.
4. Petitioner’s adultery or other misconduct: if the petitioner commits adultery which is known to the respondent, that will terminate the latter’s desertion hereby giving the respondent a ground for divorce.  

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