- Desertion is based on the rejection by one party of all obligations of marriage (Perry v Perry (1952) 203).
- “Desertion is not the withdrawal from a place but from a state of things” per Lord Merrivale in Pulford v Pulford (1923) P18 at p.21.
- The factum of desertion can be established even if the parties are living under one roof. As said by Lord Denning L.J. (as he then was) at Hopes v Hopes (1949) P227 at p.235:
“The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat. They may meet on stairs or in the passageway, but so they might if they each had separate flats in one building. If that separation is brought about by his fault, why is that no desertion? He has forsaken and abandoned his wife as effectively as if he has gone into lodgings.The converse is equally true. If the wife ceases to have anything to do with, or for, the husband and he is left to look after himself in his own rooms, why is that not at desertion? She has forsaken and abandoned him as effectively as if she had gone to live with her relatives.”
- As was said by Ormrod, J. In Pheasant v Pheasant (1972) Fam.203 at 207: “Separation is undoubtedly, the best evidence of breakdown, and the passing of time, the most reliable indication that it is irretrievable.”
- In Springfellow v Springfellow(1976) 2 All ER 219, it was held that desertion per se without more is not a good ground to assert that a marriage has irretrievably broke down.
- The relationship does not end so long as both of them bona fide recognised it as subsisting. What is required to be proved to the satisfaction of the Court is both a physical separation and a mental attitude on the part one or both of the spouses.
- In Bhanu Sekaramani v Nagamma (1991) 3 MLJ 34, the court held that the fact of separation is a prima facie evidence of a breakdown, but P has to prove that the breakdown is irretrievably. In other words, a constructive desertion does not constitute an irretrievable breakdown of a marriage.
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