Introduction
Desertion is one of the facts that may be relied upon in establishing that a marriage has broken down irretrievably under the Matrimonial Causes Act. However, the mere fact that spouses are living apart does not, without more, establish desertion for the purpose of a petition for dissolution of marriage.
The Court of Appeal considered the requirements for proving desertion in Igbuwe v. Igbuwe (2023) LPELR-60748(CA). The decision illustrates the distinction between physical separation and the legal concept of desertion and highlights the evidence required to establish the relevant statutory fact.
Desertion Under the Matrimonial Causes Act
Section 15 of the Matrimonial Causes Actprovides that a petition for dissolution of marriage may be presented on the ground that the marriage has broken down irretrievably. Section 15(2) sets out the facts upon which a petitioner may rely in establishing that breakdown.
One of those facts is that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
A petitioner relying on desertion must therefore establish more than the fact that the spouses ceased living together.
The Elements of Desertion
The Court of Appeal in Igbuwe v. Igbuwe considered the established principles governing desertion and referred to the elements identified in earlier authorities, including Nwakwo v. Nwakwo (2014) LPELR-24396(CA).
The elements ordinarily associated with desertion include two elements relating to the spouse alleged to have deserted and two elements relating to the spouse alleging desertion.
1. Factum Deserendi: The Fact of Separation
There must be a cessation of cohabitation between the parties. The spouses must have ceased living together in the sense relevant to the marital relationship.
Physical separation is therefore an important element, but it does not by itself establish desertion.
2. Animus Deserendi: The Intention to Desert
The spouse alleged to have deserted must also possess the intention to bring cohabitation to an end. This intention, commonly described as animus deserendi, is an essential element of desertion.
Consequently, evidence that the parties were living apart may not be sufficient where the circumstances do not establish the necessary intention to abandon the marital relationship.
3. Absence of Consent by the Petitioner
The separation must not have occurred with the consent of the spouse alleging desertion. Where the parties mutually agree to live apart, the circumstances may not support a finding that one spouse deserted the other.
4. Absence of Just Cause for the Separation
The conduct of the petitioner may also be relevant. A petitioner relying on desertion must establish the absence of conduct that provided just cause for the other spouse to leave the matrimonial home or cease cohabitation.
The circumstances surrounding the separation must therefore be considered as a whole.
The Decision in Igbuwe v. Igbuwe
In Igbuwe v. Igbuwe (2023) LPELR-60748(CA), the petitioner relied on desertion as one of the facts said to establish that the marriage had broken down irretrievably.
The evidence was considered by the trial court, which found that the requirements for establishing desertion had not been sufficiently proved. The Court of Appeal upheld that conclusion.
The decision demonstrates the importance of establishing the necessary elements of desertion through evidence. The existence of physical separation alone does not automatically establish that one spouse deserted the other within the meaning of the Matrimonial Causes Act.
Proving Intention and the Circumstances of Separation
Because intention is a central element of desertion, the circumstances surrounding the separation may be important in determining whether animus deserendi has been established.
Relevant evidence may include the circumstances in which the parties stopped living together, communications between them, attempts at reconciliation, the conduct of the parties after separation and other facts capable of explaining whether the separation was intended to bring marital cohabitation to an end.
The evidence must also be considered in the context of the relationship between the parties. A period of separation may arise for many reasons and does not necessarily amount to desertion.
Practical Considerations in a Petition Based on Desertion
A party relying on desertion in matrimonial proceedings should ensure that the evidence addresses each of the relevant elements rather than focusing only on the fact that the spouses have lived apart.
- There should be evidence of the cessation of marital cohabitation.
- The evidence should support the allegation that the respondent intended to bring cohabitation to an end.
- The circumstances of the separation should be examined to determine whether the petitioner consented to it.
- The evidence should also address whether the respondent had just cause for leaving or remaining apart.
- The statutory period prescribed by the Matrimonial Causes Act must also be satisfied.
The particular facts of each marriage will determine the nature of the evidence required and whether the statutory fact of desertion has been established.
Conclusion
The decision in Igbuwe v. Igbuwe (2023) LPELR-60748(CA) demonstrates that proving desertion in Nigerian matrimonial proceedings requires more than establishing that spouses are living separately.
The party relying on desertion must establish the relevant elements, including the fact of separation, the intention to bring marital cohabitation to an end, the absence of consent and the absence of just cause for the separation. The statutory period must also be satisfied.
Desertion is therefore a fact that must be established through the evidence and circumstances of each particular case before it can be relied upon in support of a petition for dissolution of marriage.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. Matrimonial proceedings depend on the particular facts and circumstances of each case. For advice relating to a specific marriage or divorce proceeding, consult a qualified legal practitioner.
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