Desertion is to abandon the matrimonial home and space without any justification. A petition for dissolution of marriage can be brought under this law if parties have lived apart for at least two years and both of them consent to the dissolution of the marriage. Section 15(2)(d) provides that ‘’The court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if, but only if the petitioner satisfies the court that the respondent has deserted the petitioner for a contortions period of at least one year immediately preceding the presentation of the petition.’’
It is important to note here that marriage under two years cannot be dissoluble as provided under sector 30 of the matrimonial causes Act, which states that ‘’ subject to this section proceedings for a decree of dissolution of marriage shall not be instituted within two years after the date of the marriage, except by the leave of court see S.30 (3) MCA. For dissolution of marriage to be done on the grounds of desertion, following elements must be proved.
1 There has been actual separation of the sponsors.
2 The intention to end cohabitation permanently
3 The lack of consent from the deserted spouses
4 Absence of just or reasonable cause for desertion.
It is to be noted also, that the law gives recognition to two types of desertion, namely, simple desertion and constructive desertion. In constrictive desertion . It is the spouse who remains aboard the matrimonies ship who is in desertion, in that the said spouse has by his or her conduct expelled the other, while in simple desertion it is the absentee spouse who has abandoned the matrimonial ship and abdicated responsible for requisite duties.
According to common law constructive desertion where thee was an emotional rather than a physical removal of one spouse from the marriage could be grounds for a divorce even though the parties still resided in the same house. However in Nigeria it is necessary to note that parties are said to be living apart unless they are living in the same household, see section 15(3) MCA. In the cause of RVB the husband forced his wife out of the matrimonial home, and abandoned her for three years without maintenance, it was held to be a contraction desertion. There are situations where a husband travels out of the country and never comes back to his wife but rather gets married to another woman. The matrimonial misconduct known as desertion is a common trend in our society and many woman are suffering the effect of this inhuman treatment and cannot get justice because of the mode of marriage they contracted.
Nkeeh Bright Ewere