Desertion as a Matrimonial Offence
| Published date | 01 January 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00758.x |
| Author | G. A. Forrest |
| Date | 01 January 1940 |
DESERTION
AS
A
MATRIMONIAL
OFFENCE
DESERTION
AS
A
MATRIMONIAL
OFFENCE
195
-.
OW
that the Matrimonial Causes Act,
1937.
has
made
desertion without cause
a
ground for divorce, a new
interest attaches to
old
cases on the subject and already
the Courts have been faced with numerous problems connected
with the existence, continuance or termination of desertion.
As
a matrimonial offence desertion is entirely
a
creature of statute
;
after the Matrimonial Causes Act,
1857,
it
was a ground for
judicial separation and until the Act of
1925
it
was
one
of
the
grounds,
if
of two years’ duration and coupled with adultery,
on which
a
wife could obtain
a
divorce.
No
statutory definition
of the offence exists and, though we have the high authority of
Sir Henry Duke
(as
he then was) for suggesting that an exhaustive
definition, wide enough to cover the infinite variety
of
matri-
monial circumstance thrown up in the accidents
of
litigation,
is
irnpossible,l the essence
of
the ofience
is
well known. The
locus
classicus
is Lord Penzance’s judgment
in
Fitzgerald
v.
Fitzgwalda
:
“No
one can ‘desert’ who does not actively bring to an end an
existing state
of
cohabitation. Cohabitation may be put an end
to by other acts besides quitting the matrimonial home. Advan-
tage may be taken of temporary absence or separation to hold
aloof from
a
renewal
of
intercourse.
This
done wilfully, against
the wish of the other party, and in execution of
a
design to cease
cohabitation, would constitute ‘desertion.’
”
Though it
has
recently been suggested3 that passages in
a
later part of this judg-
ment are too wide, the passage quoted above has been accepted
as
the basis
of
the law,
and,
as
such, has been explained, amplified
and commented on on many occasions.
Thus in
Fro7cd
v.
Fr0~c-d~
it
was
said: “Desertion means the
cessatioii
of
cohabitation brought about by the act or fault
of
either party.”
In
Jacksoit
v.
Jacksoid
Sir Henry Ihke said at page
23:
“If there
is
abandonment by one
of
the spouses of the other,
that is desertion. If one
of
the spouses causes the other to live
separate and apart that is desertion.”
I*.
.
.
the
party who intencls bringing the cohabitation to an end and
whose
N
In
Sickert
v.
Sdckei.6,
Gore11 Barnes,
J.,
said*:
1
Juckson
v.
Jacksora.
[IQ~]
Y.
at
p.
24.
*
(1864).
L.R.
I
P.
L
D.
at
p.
658.-
E.g.
Fdford
v.
Pulfotd,
r19231,
P.
at
p.
23;
t”ccr1I.y
v.
Pard).,
[ipjy]
2
.411
E.R.
at
p.
362;
Skaw
v.
Sha:Li,
cXQ391
L
All
E.R.
at
p.
383.
.-
-
__
*
[r$j]-P.
at
p.
178.
a
“18-1
P.
at
p.
282.
Supra.
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