How Do You File for Divorce Based on Desertion?

What counts as desertion?

Under Section 54(1)(c) of the Law Reform (Marriage and Divorce) Act 1976, desertion is one of the four facts that prove a marriage has broken down. Your spouse must have deserted you for a continuous period of at least two years immediately before you file.

Three things must be true:

• your spouse left the family home
• you did not agree to it
• your spouse meant to end the marriage for good

You generally must prove both that your spouse left and that they meant to desert you.

How do you prove it?

You need to show when your spouse left, that you did not agree, and that they meant to stay away. Common evidence:

• statutory declarations (sworn written statements) from family or neighbours who saw them leave
• records of unanswered calls, messages and letters asking them to come back
• immigration records, if your spouse left the country

Messages where your spouse says they will not return are strong evidence. If they simply disappeared, witness statements and a clear timeline matter more.

Keep a dated record of events from the day your spouse left, including every attempt to contact or reconcile.

What if your spouse came back for a while?

Section 54(1)(c) needs two continuous years of desertion immediately before you file. The Act does not contain any rule that lets a short period back together be ignored.

If your spouse returned for a time and then left again, ask a lawyer how this affects the two-year count before you file. The timing of your petition matters.

What is constructive desertion?

Sometimes one spouse’s behaviour is so bad that it forces the other to leave. The spouse who caused the leaving can then be treated as the deserter, not the one who walked out.

This can work against you too. If your spouse says your behaviour drove them away, the court will look closely at why they left.

If you left because of your spouse’s behaviour, you may still have a claim. Unreasonable behaviour may be a better ground to rely on.

How do you file?

First, check with a family lawyer that your situation meets Section 54(1)(c) and that your evidence is enough. If another ground fits better, such as separation, they may suggest that instead.

You then file a divorce petition in the High Court. It sets out the date your spouse left, how long they have been gone and your evidence. Your spouse is served and can respond.

If the court is satisfied, it grants a decree nisi. You can apply to make it absolute after three months. Custody, maintenance and property are dealt with along the way.

Looking to engage a divorce lawyer? If you are unsure whether you can file on desertion yet, or whether your dates add up, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.