Irish law – distinguishing ‘separation’ from ‘desertion’

Irish divorce information

Separation v Desertion. What’s the difference ?

 Facts about desertion; What everyone should know

By Roger Eldridge, Chairman, National Mens Council of Ireland and Executive Director, Family Rights and Responsibilities Institute of Ireland

 NB. This is not applicable to English law, however these words by David Hodson of the Centre for Social Justice are applicable to both the Irish and English experience:

• “It might be said that it is perverse for a divorce lawyer and family court judge to be espousing laws and policies which will reduce family breakdown, and with it the need for such services. Like most family lawyers, I have seen at first hand too many of the consequences of family breakdown and too many consequences of the impact on children. If one result of these proposed reforms is less need for divorce lawyers then most in society will rejoice!”

CHAIRMAN’S FOREWORD – David Hodson, Chairman of the Family Law Review,
Centre for Social Justice, UK .

It is very clear when discussing their difficulties with callers to our help-line [National Mens Council of Ireland] that many Spouses – men in particular – are very confused about the difference between separation and desertion. This is not their fault as the legal profession have made it their business to eliminate the word and concept of “desertion” from all family law proceedings. I sat in with a member of Tréigthe – our Deserted Spouses & Marriage Reconciliation Self-Help Group – when he went to discuss with his solicitor what he could do.

Despite the facts supporting it, whenever he described himself as being “deserted” his own solicitor got very cross with him and told him that the judge would be very angry if he ever said anything like that in court. When he tried to talk about it further his solicitor told him that she will not represent him if he ever used the word again!

Hopefully the information given below which has been taken directly from three different legal sources will clear people’s heads and stop them mistakenly believing they are “separated” when really they are “deserted”.

The reason why solicitors create this confusion is because they have been assisting Spouses who are the deserter to profit at the expense of the actual deserted spouse for the past thirty years [in Ireland only].  They tell the deserted Spouse that the other Spouse – the actual deserter – is entitled to separate and tell them that they should just accept that they are now “separated” and deal with it. By doing this the deserted Spouse loses everything and especially is seen to be going along with the breakdown of the Marriage instead of getting help to reconcile it.

Some of the most important aspects of family Law are the provisions for maintenance. It is a duty of Spouses to maintain the Family home and the other Spouse and children living there. If one of the Spouses deserts the family they are still held to this duty and are forced to pay money for the maintenance of the deserted household. Logically and in the statute there is a bar to a deserter receiving such maintenance. 

However, the law is being operated by solicitors so that the Husband is always the one ordered to pay maintenance to his wife regardless of who is guilty of desertion. This creates an ever lengthening queue of wives outside solicitors’ offices who are led to believe that they can just walk out on their Marriage and still be kept in the style (or better!) they were when they were acting as a wife in the home. They are told to ensure they keep the kids with them and refuse to let them stay at home even though the law presumes that the children should be at home. This has been used for many years as a sort of “grey area” which is used to justify the “legitimise” the deserter and get money from the deserted spouse for the maintenance of the children. Solicitors advise their deserted clients to pay this money even though it is against their best interests and those of the children in the long run.

In all of this confusion and corruption of the law any chance of a Reconciliation of the Family is buried in anger and injustice. This has to stop.

Please pass the information below to anyone you know who is having problems in their family (i.e. by now almost everyone!) and let them know that we are available to talk to them and assist them to resist the worst practices of the courts. This is the necessary first step before moving on to the more important one of helping them to reconcile their Marriage. When leaving a marriage doesn’t bring instant rewards it gives people a chance to rethink their plans. It is this critical period of time that needs to be seized upon if we are ever to stop the wanton dismemberment of families and destruction of society.

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See below for more references.

Roger Eldridge is Chairman, National Mens Council of Ireland (National Office: Knockvicar, Boyle, Co. Roscommon, Website: www.family-men.com  Email: familymen@eircom.net      Tel:: 00353 (0) 7196-67138           00353 (0) 83-3330256).

http://www.the-divorce-directory.com/article_desertion.html

DESERTION

Desertion, known in some states as ‘abandonment,’ is considered grounds for divorce in states that have fault divorces. There are two types of desertion, actual desertion and constructive desertion. Both types of desertion must be continuous and uninterrupted for a specific period of time between one and five years depending on the state.

The most obvious situation which would constitute desertion is when one spouse leaves without a trace, never comes back and never again makes contact. However, there are other situations which constitute desertion.

Desertion vs. separation
Desertion is not the same as separation. In a separation both spouses consent to living apart. Desertion only occurs when one spouse does not consent to the separation.

The necessary elements to establish desertion include:

•           No longer living in the same residence
•           No longer having sexual relations
•           Deserting spouse intends to end the marriage
•           Deserting spouse was not justified in leaving the residence
•           Deserted spouse did not consent to the desertion
•           Desertion has been continuous and uninterrupted for the amount   of  time designated by law in your state

Actual desertion vs. constructive desertion
In actual desertion the deserting spouse leave the home. Constructive desertion occurs when the deserted spouse leaves due to unbearable conditions at home caused by the other spouse. Combined with the above elements of desertion, depending on the state, conditions for constructive desertion can include:

1. Physical abuse
2. Mental cruelty
3.  Adultery
4.  non-support
5. Unjustified refusal to have sexual relations for a significant period of time
6. Knowing transmission of a venereal disease

Couples contemplating divorce should be cautious about moving out of the residence in a manner which can be claimed as desertion. To avoid a claim of desertion both parties must agree to the separation and should provide each other with contact information.

The desertion period must be continuous and uninterrupted. One night spent under the same roof or one meeting for sexual relations can be considered an interruption in the desertion period, and the required length of time would start over after that date.

Exceptions
Unintentional abandonment is not considered desertion. If a spouse goes missing for a specified period of time, and efforts to find the spouse are unfruitful, the abandoned spouse may obtain a divorce. However, situations such as military personnel missing in action do not constitute desertion.

Desertion Grounds

Desertion must be proven by a preponderance of the evidence.  There are two main elements to prove to establish abandonment/desertion grounds for divorce; (1) the actual breaking off of the matrimonial cohabitation (abandoning the usual marital duties, not just sexual intercourse must be established), and (2) the intent to desert the marriage.

The breaking off of matrimonial cohabitation means that the couple must actually have separate addresses, and not just maintain separate sleeping arrangements.  Ceasing to engage in sexual intercourse, even without just cause, does not constitute desertion.  But where there is a significant abandonment of marital duties, which results in practical destruction of home life, a party may be guilty of desertion.

 The second element to establish abandonment/desertion is the intent to desert the marriage. The desire to separate is not necessarily synonymous with the intent to desert the marriage. Where the parties separate by “mutual consent,” neither party has established grounds for desertion.  If the person deserting cannot legally justify the desertion, then proof of the actual breaking off of the matrimonial relationship with the intent to desert entitles the other spouse to a divorce. 

“Constructive desertion” involves actions or conduct resulting in the other spouse’s forced separation.  To prove constructive desertion, the spouse leaving the home must prove that the misconduct by the spouse remaining in the home constitutes grounds for divorce. Traditionally, this spouse must show that the remaining spouse conducted himself/herself in such a manner as to provoke the leaving.

It should be noted that excessive alcohol consumption is not sufficient, standing alone, to constitute constructive desertion, nor is demanding that a spouse leave is not constructive desertion. Generally speaking, a spouse is not justified in leaving the other just because there has been a gradual breakdown in the marital relationship or because the parties are unable to live together in peace and harmony. The party claiming justification for leaving has the burden of proving it, unless the justification appears from the testimony given by the other party.

Defenses to desertion include (1) agreement, (2) recrimination, (3) justification, (4) pending divorce case, or (5) relocation of spouse.

Agreement:  When the separation is by consent or agreement, or is acquiesced to by the other spouse, there is a presumption that the separation by consent continues until a spouse withdraws the consent and offers to resume the cohabitation.  Refusal without justification will give rise to desertion.

Recrimination:  Where the deserted party as well as the deserting party is guilty of a fault ground, the deserted party is barred from a divorce on the grounds of the desertion.

Justification:  Where there is violence, even thought the acts do not amount to cruelty, there may be a sufficient basis to constitute a fault ground for divorce.

Pending divorce case:  A spouse is not guilty of desertion where the leaving takes place after the divorce case has been instituted and during the pendency of the case.

Relocation of spouse:  A spouse is no longer expected to follow the other spouse’s change of abode, and the refusal to follow to relocate is not desertion.

Ref. http://legal-dictionary.thefreedictionary.com/desertion

DESERTION

The act by which a person abandons and forsakes, without justification, a condition of public, social, or family life, renouncing its responsibilities and evading its duties. A willful Abandonment of an employment or duty in violation of a legal or moral obligation.

Criminal desertion is a husband’s or wife’s abandonment or willful failure without Just Cause to provide for the care, protection, or support of a spouse who is in ill-health or necessitous circumstances.

Desertion, which is called abandonment in some statues, is a Divorce ground in a majority of states. Most statutes mandate that the abandonment continue for a certain period of time before a divorce action may be commenced. The length of this period varies between one and five years; it is most commonly one year. The period of separation must be continuous and uninterrupted. In addition, proof that the departed spouse left without the consent of the other spouse is required in most states.

Ordinarily, proof of desertion is a clear-cut factual matter. Courts generally require evidence that the departure was voluntary and that the deserted husband or wife in no way provoked or agreed to the abandonment. Constructive desertion occurs when one party makes life so intolerable for his or her spouse that the spouse has no real choice but to leave the marital home. For an individual to have legal justification for departing, it is often required that the spouse act so wrongfully as to constitute grounds for divorce. For example, a wife might leave her husband if she finds that he is guilty of Adultery.

In desertion cases, it is not necessary to prove the emotional state of the abandoning spouse, but only the intent to break off matrimonial ties with no ‘animus  revertendi’, the intention to return.

Mere separation does not constitute desertion if a Husband and Wife agree that they cannot cohabit harmoniously. Sexual relations between the parties must be totally severed during the period of separation. If two people live apart from one another but meet on a regular basis for sex, this does not constitute desertion. State law dictates whether or not an infrequent meeting for sexual relations amounts to an interruption of the period required for desertion. Some statutes provide that an occasional act of sexual intercourse terminates the period only if the husband and wife are attempting reconciliation.

Unintentional abandonment is not desertion. For example, if a man is missing in action while serving in the Armed Services, his wife may not obtain a divorce on desertion grounds since her spouse did not intend to leave his family and flee the marital relationship. The Common Law allows an individual to presume that a spouse is dead if the spouse is inexplicably absent for a seven-year period. If the spouse returns at any time, the marriage remains intact under common law.

Laws that embody the Enoch Arden Doctrine grant a divorce if evidence establishes that an individual’s spouse has vanished and cannot be found through diligent efforts. A particular period of time must elapse. Sometimes, if conditions evidencing death can be exhibited, a divorce may be granted prior to the expiration of the time specified by law.

In some jurisdictions, the law is stringent regarding divorce grounds. In such instances, an Enoch Arden decree might be labeled a dissolution of the marriage rather than a divorce.

Upon the granting of an Enoch Arden decree, the marriage is terminated regardless of whether or not the absent spouse returns. Generally, the court provides that the plaintiff must show precisely what has been done to locate the missing person. Efforts to find the absent spouse might include inquiries made to friends or relatives to determine if they have had contact with the missing spouse, or checking public records for such documents as a marriage license, death certificate, tax returns, or application for Social Security in locations where the individual is known to have resided.

References:

• Desertion is frequently coupled with non-support, which is a failure to provide monetary resources for those to whom such an obligation is due. Non-support is a crime in a majority of states but prosecutions are uncommon. See “West’s Encyclopedia of American Law”, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
• desertion n. the act of abandoning, particularly leaving one’s spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era of no-fault divorce and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues. – See  Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.
• desertion noun abandonment, abandonment of allegiance, abjuration, absence without leave, act of   forsaking,  apostasy,  AWOL,  defection,  departure, dereliction,  disloyalty,  flight,  forsaking,  forswearing,  leaving,  mutiny,  quitting,  recreancy,  renouncement,  renunciation,  repudiation,  resignation, secession, unlawful departure, willful abandonment.
  Associated concepts: constructive desertion, willful desertion, See also: absence, dereliction, disloyalty, flight, infidelity, revolt, schism, sedition – See “Burton’s Legal Thesaurus,” 4E. Copyright © 2007 by William C. Burton.
• DESERTION, torts. The act by which a man abandons his wife and children, or either of them. 
       2. On proof of desertion, the courts possess the power to grant the ‘Wife, or such children as have been deserted, alimony (q.v.)
• DESERTION, MALICIOUS. The act of a husband or wife, in leaving a consort, without just cause, for the purpose of causing a perpetual separation. Vide Abandonment, malicious. – See “A Law Dictionary, Adapted to the Constitution and Laws of the United States.” by John Bouvier. Published 1856.

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