How to use desertion as the grounds for divorce in England and Wales

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Originally published on 28th September 2018 at 10:20 AM

How to use desertion as the grounds for divorce

What is desertion in divorce uk?

Desertion in English and Welsh law is defined as one person in the marriage deserting the other for a continuous period of at least two years. This basically means that one person has left the other without agreement or for a good reason.

Desertion can't be used in Scotland or Ireland as a reason to divorce.

How do you ‘prove’ that you’ve been deserted?

Desertion is rarely used because it can be hard to prove as it relies on proving the intent to 'desert' was there. You must provide proof that there was mental intent to divorce throughout the two years. This is tricky to do and is one of the reasons why most people tend to use either two years separation, five years separation or unreasonable behaviour as the fact to rely on for divorce/dissolution. Here’s a quick breakdown of these reasons so you can see if they are more relevant to you:

  • You can use Two years separation with consent as the 'fact' or 'grounds for divorce' if you both agree that the marriage has broken down without any chance of repair and you have been separated for two years.
  • Five years separation can be used if you’ve been separated for five years. The difference with this one is that you can start proceedings without the other person agreeing to the divorce, as this grounds for divorce doesn’t rely on consent.
  • Adultery can be used as the 'fact' or 'grounds for divorce' if one person in a marriage has sexual intercourse with someone of opposite sex. However, the one who has committed the adultery must agree to using this as the grounds for divorce.
  • Unreasonable Behaviour can be used as the reason for a divorce if the behaviour has negatively affected the other person in such a way that the marriage can’t recover. For example, verbal abuse, lack of emotional support or limited socialising as a couple.

If you 're looking for more examples of unreasonable behaviour, read our blog on using unreasonable behaviour as a 'fact' or 'grounds for divorce'.

Do I need the other person’s permission to start the divorce process?

No, you can start proceedings without the consent of your ex, however, as desertion is difficult to prove, it may be worth choosing unreasonable behaviour or if you’ve been separated for more than five years, using five years separation.

What if I’m not in touch with my ex?

If you have an address for your ex you can start proceedings. If you don’t know where your ex is and can’t get in touch with them at all, not even online etc, the courts will want to see that you have attempted to get in contact with them. Get in touch for more advice on this part by booking a free 15-minute call with one of our experts here.

How does desertion affect the divorce/dissolution paperwork.

The petition:

If desertion is used as the grounds for divorce/dissolution, then the petitioner (the person filing for divorce) must include a short statement providing the circumstances and the date that their spouse / civil partner left without their consent.

The acknowledgement of service:

The respondent (the person responding to the petition) can choose to defend the divorce on this form, if they do not agree with desertion being used as the 'fact' or 'grounds for divorce'.

The decree nisi:

The decree nisi is comprised of the D84 and D80 form. If you have used desertion, the D84 form is the same regardless of the grounds, however, the D80 form changes. For desertion, it’s the D80 C form.

The decree absolute:

The final stage of the divorce is the decree absolute and does not change depending on the 'fact' used. Read our blog on the decree absolute for more information about this.

FAQs

What qualifies spousal abandonment?

Desertion is hard to prove, but if your ex has left you without your agreement for a period of at least two years then you may be entitled to use desertion as your 'fact' or 'grounds for divorce/dissolution. As desertion is hard to prove, it may be better to use unreasonable behaviour.

How long is desertion in marriage?

To use desertion as a 'grounds for divorce', your partner must have left without your consent for at least a two year period.

Does moving out affect divorce?

If you move out, your ex could use this as an example of unreasonable behaviour and vice versa. This alone doesn’t necessarily have a bearing on the divorce, however coupled with further unreasonable behaviour points it could.

For more advice on using desertion as the grounds for divorce, book a free 15-minute call with one of our experts here.

Hannah Hodgkinson
Hannah Hodgkinson
Hannah Hodgkinson is Head of Marketing at amicable. Hannah has over six years experience working for global NGOs and private consultancies and has a passion for marketing for companies with a social purpose

Comments

Divorce based on desertition my (ex) wife left me 10 years ago to return to South Africa. We have had no contact & she has taken all documentation with her. How do I final for a divorce

posted Brian Levett at 19.07.2018 14:49

Hi Brian, you can use five years separation or desertion as the reason for the divorce. If you do not have an address for your ex you will have to fill out some more paperwork to prove to the court that you have tried every means necessary to contact your ex. You will also need a marriage certificate. If you don’t have an original you can order a new one via the government website. Feel free to contact us if you need any more assistance – 0203 004 4695.

posted Hannah Hodgkinson at 19.07.2018 14:49

My husband left me July 2017. When I tried to file for divorce, the website suggests it should be 2 years ( which is not in my case). Do I have to wait another 8 months until July 2019 to be able to file for a divorce?


posted Bota at 28.10.2018 11:45

Me and my husband have no contact whatsoever, he left in 2013 , 10 months later I found out through mutual friend that he has got married in Indonesia as law there allows multiple marriage. We have child together who does not even know him as he was only 10 months when he left. I ve been trying to get divorce on adultery grounds.Unfortunately court did not accept it as there was not enough evidence. Now I am trying to amend divorce petition but a I am stuck as I don’t know what reason should I use.Desertation? Or 5 years separation?just to add that I have applied for divorce in 2016 so even tho there is 5 years from the day he left there is only 2,5 years since application was made.

posted Ada at 29.10.2018 16:37

Hi I’ve been separated from my husband since 2015. I cant find him so don’t know how to go about getting a divorce. He’s not on the electoral role and nobody will tell me where he’s living. How do I go about doing a private divorce myself through the courts if I can’t find him. Can you please advise

posted Tracey at 14.03.2019 15:43

Thanks for sharing these tips! I am sure your tips really helpful!

posted Matrimonial at 05.04.2019 7:53

Hi Hanna I was married 3 ago in Antigua, it is not legally registered in U.K. I live in Spain. My wife returned to U.K. 2 weeks ago. I have informed her the marriage is over. All assets are in my name, she has never played 1 penny towards anything in our time together. 1. Can she divorce on grounds of desertion? 2. She is asking for £10,000 for each year of marriage. Is that a reasonable amount considering the financial backround? She says that is the legal advice she has been given. Vince


posted Vince at 12.02.2020 19:28

Currently, me and my ex separate since March 2019. I try to contact her few times for an agreement, however, I can't receive any her response. And she does not tell me her current address. So how can I apply divorce, unreasonable behaviour or wait for until 2 years separation.


posted Yang at 17.03.2020 0:43

Hi me and my has been separated for 1year now and suddenly she moved out of the country to EU country and I don't have any of her address I tried to reach out in chat to know where she is but she wouldn't say anything of her where about and my children How can I filled a positive divorce petition?


posted Saheed isman at 20.01.2021 14:37