ANIMUS DESERENDI IN CONSTRUCTIVE DESERTION
| Published date | 01 March 1970 |
| Author | Frank Bates |
| Date | 01 March 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01261.x |
ANIMUS
DESERENDI
IN
CONSTRUCTIVE DESERTION
ALTHOUGH
it
is clear that an
animus deserendi
is necessary
in
cases
of
actual desertion,’ the situation with regard
to
constructive deser-
tion is altogether more complex.
It
is particularly important,
it
is
suggested, to reconsider first principles, as the Divorce Reform Act
1969
would seem to make
no
difference to the notion of desertion,
apart from the reduction of the required period to two years.
Prior
to
the important and problematical decision in the case of
Lang
v.
judicial opinion
divided
itself
into
two schools of
thought; the objective and subjective, which were described by
Denning
L.J.
in the case
of
Hosegood
v.
Hosegood.s
He described
the subjective school as follows
*
:
“
. .
.
in construotive desertion,
as
in
actual desertion,
a
hus-
band is
net
to
be found guilty,, however
bad
his conduct, unless
he had,
in
fact,
an
intention
to
bring the married life
ID
an
end. This school
admits
that there are many cases where he
may be presumed
to
have that intention.
.
.
.
But this school
says
if
in truth the facts negative any intention
to
bring the
married life
to
an end, the courts should not attribute it
to
him.”
This view was expressed by Buclnrill
J.
in the earlier case of
Boyd
v.
Boyd
where the learned judge expressly refuted counsel’s
suggestion that the test was whether the husband had behaved in
such
a
manner that bhe wife could not be expected
to
live with
him.6 Bucknill
J.
said,T
‘‘
.
.
.
but, before there can be a case
of
comtructive desertion,
the court must be satisfied that the conduct
of
the husband was
such as
to
show
a
clear
intention
on
his part
to
drive the wife
away. There must be
an
intention
on
the part of the person
charged with desertion to bring the cohabitation
to
an end.”
Denning
L.J.
described the objective test thus,’
“The other school
of
thought does lip service
to
the
necessity for such an intention, but says that, even
if
the hus-
band had
no
intention in fact to bring the married life to an
end, yet he
is
conclusively presumed
to
intend the natural and
probable consequences
of
his acts and
if
his conduot is
so
bad
or
so
unreasonable that his wife is forced
to
leave him, he must
1
See,
e.g.,
Sickert
v.
Sickwt
[1899]
P.
278.
2
[1955]
A.C.
402.
3
(1950)
66
T.L.R.
(€3.
1)
735.
4
Ibid.
at
p.
738.
5
[1938]
4
All
E.R. 181.
6
See Divorce
Reform
Bill,
as
amended by Standing Committee C,
cl.
2 (1)
(b).
7
“383
4
All
E.R.
at
p.
182.
8
(1960)
66
T.L.R.
(Pt.
1)
at
p.
78.
144
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