Desertion and divorce

What is desertion in divorce? The old UK law explained

When it came to desertion and divorce, the old law treated desertion as one of the five ‘facts’ you could use to prove your marriage had broken down. To understand what constitutes desertion in divorce under that system, the court looked for several strict conditions, all at once.

• Physical separation: Your spouse had to have actually left, ending the shared life of the marriage

• Lack of consent: You could not have agreed to the separation. If you both decided to part, it wasn’t desertion

• No justifiable reason: Your spouse had to have left without good cause. If your behaviour effectively drove them out, the claim could fail

• A continuous two-year timeline: The desertion had to last for at least two years without a break

The court also needed proof of animus deserendi – the intent to desert. This meant showing that your spouse genuinely meant to end the marriage for good and held that intention throughout the entire two years.

It’s for this reason that desertion was so rarely used. Proving someone’s state of mind over two years is hard. Most family lawyers steered clients toward unreasonable behaviour or a simple period of separation instead, because those were far easier to evidence.

What happens if your spouse has disappeared and you can’t find them?

For many people searching for desertion and divorce, this is the real situation they’re facing. Your spouse hasn’t just left the marriage – they’ve vanished, and you have no idea where they are.

It’s a stressful position to be in, but it doesn’t stop you from getting divorced. Normally, your spouse needs to be served with the application form, meaning they receive a copy and acknowledge it. When you can’t reach them, the court offers practical alternatives.

• Substituted service: If you have any way to contact your spouse, an email address, a mobile number, or even a social media account, the court may allow you to serve them that way instead of by post

• Dispensing with service: If your spouse truly cannot be found, even after reasonable efforts to trace them, you can apply to dispense with service altogether and continue without it

Timing matters here, and there’s one detail worth knowing. After you submit your application, there’s a mandatory 20-week cooling-off period before you can apply for the Conditional Order.

If your spouse has disappeared, a good family lawyer can use that window to sort out alternative service. Handled well, this means your divorce stays on track rather than being delayed.