To suceed on this fact, there are several elements which must be proven to demonstrate that one of the parties has deserted the other.
There must have been a continuous period of 2 years immediately before the petition where the parties have lived separately.
Any period of cohabitation cannot be counted as part of the period of desertion. However, any period of cohabition up to 6 months in duration does not prevent a party bringing a petition under this fact.
There also must have been an intention to desert and end the marriage. Therefore, a party that leaves home for another reason, e.g. to go away on business, does not have the necessary intention to desert.
The person bringing the petition cannot consent or agree to the separation under this fact. If there is consent, there are other grounds which a party may use to bring a divorce petition.
On this basis, it can be difficult to show desertion and the different technicalities can mean that it is easier to use another fact to petition for divorce. This fact would be best cited where the person applying for divorce does not know of the whereabouts of the other party. As a result, this ground is not often used.
For a quick overview of all the grounds for divorce, take a look at the following link:
Our Family Law Team