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

No-fault divorce was introduced in England and Wales on the 6th of April 2022 which removes the need to choose one of the five facts to support the 'irretrievable' breakdown of a marriage. All the information below is applicable to the previous system, and divorces that were issued before the 6th of April 2022.

You can read more about this change in our no-fault divorce guide

What is desertion in divorce in the 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-year separation, five-year 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 the opposite sex. However, the one who has committed adultery must agree to use 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?

Divorce application (previously called the divorce 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 divorce application, previously called the divorce 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'.

Conditional order (previously called the decree nisi):

The conditional order (previously called the decree nisi) is comprised of the D84 and D80 forms. 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.

Final order (previously called the decree absolute):

The final stage of the divorce is the final order (previously called 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.

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